Criminologists

Criminologists & Forensic Experts

United States v. Maher, 454 F.3d 13 (1st Cir. 2006). Police officer testifies in narcotics trial that based on his training and experience, numerical notation on papers was part of defendant's customer order list. Jury convicts. Admissibility affirmed. This fell on the lay opinion side of the dividing line between lay and expert testimony.

United States v. Mahone, 453 F.3d 68 (1st Cir. 2006). In bank robbery trial, footwear impression expert Cynthia Homer testifies that footprints at scene of crime match shoes with defendant's DNA found nearby. Jury convicts. Admissibility affirmed. Expert was qualified; she holds masters degree in forensic science and has performed over 11,000 footwear comparisons. Defendant questions reliability of "ACE-V" method of footwear comparison (analysis, comparison, evaluation, and verification), based on arguments similar to those sometimes raised against fingerprint identification. But district court acted within its discretion in accepting ACE-V methodology based on published studies, its error rate, and its general acceptance in forensic field.

United States v. Pinillos-Prieto, 419 F.3d 61 (1st Cir.), cert. denied, 126 S. Ct. 817 (2005). Law enforcement officer testifies in narcotics trial that drug operations often involve guns and violence. Jury convicts. Admissibility affirmed. Testimony was admissible as lay opinion.

United States v. Pina, No. 04-1029 (1st Cir. July 15, 2005) (unpublished). Police officer testifies at narcotics trial that cocaine and other items found at defendant's apartment (scales, packages of cash, sandwich baggies) are "consistent with distribution." Jury convicts. Admissibility affirmed. Defendant says testimony was not helpful to trier of fact, because items found were also "consistent with" other uses. But this testimony was permissible. Expert did not testify on defendant's intent.

United States v. Ayala-Pizarro, 407 F.3d 25 (1st Cir.), cert. denied, 126 S. Ct. 247 (2005). In narcotics trial, arresting officer testifies for prosecution on how drug points work and how heroin is customarily packaged for sale. Jury convicts. Admissibility affirmed. Officer's testimony was based on his personal knowledge from his own experience as law enforcement officer. It was therefore lay opinion and not subject to rules governing admissibility of expert testimony.

United States v. Garcia-Morales, 382 F.3d 12 (1st Cir. 2004). In narcotics trial, Customs Service Agent Yariel Ramos testifies as prosecution expert on nature and structure of typical drug distribution conspiracies. Jury convicts. Admissibility affirmed. Defendant did not object to testimony below and so review is for plain error. Agent was qualified to offer expert testimony by experience, testimony was helpful to trier of fact, and evidence was not more prejudicial than probative.

United States v. Osorio, 360 F.3d 48 (1st Cir. 2004). In trial of defendant charged with possession of firearm by felon, prosecution witness testifies that weapon moved in interstate commerce. Defendant objects that witness was not designated as expert in prosecution's pretrial disclosures. District court overrules objection and jury convicts. Affirmed. Testimony was lay opinion, not expert opinion, because it was based on witness's personal visit to Massachusetts plant where weapon was manufactured, and because witness's conclusions were derived "from a process of reasoning familiar in everyday life."

United States v. Casas, 356 F.3d 104 (1st Cir.), cert. denied, 541 U.S. 1069 (2004). In drug conspiracy trial, prosecution calls DEA agent to give "overview" of evidence. Agent testifies based on his "investigation" that various defendants were members of drug smuggling organization. Jury convicts Admissibility reversed. Agent's "overview" testimony relied in part on hearsay. It cannot be defended as proper expert opinion, because prosecution did not qualify agent as expert, and because such "overview" testimony is not proper grist for expert opinion in any event. Jurors could evaluate for themselves, based on underlying evidence, whether any given defendant was member of drug conspiracy. Error was harmless as to some defendants.

United States v. Soto-Beniquez, 356 F.3d 1 (1st Cir. 2003) (vol. 1) (vol. 2) (errata), cert. denied, 541 U.S. 1074 (2004). In massive six-month drug conspiracy trial, prosecution successfully offers opinion testimony from eight forensics examiners, two pathologists, and one ballistics witness, without having formally designated any as experts. Admissibility affirmed. Forensic experts testified only to observations at crime scenes and opinions based on personal knowledge thus acquired. District court did not abuse its discretion in concluding that this constituted lay opinion, not expert opinion. Government substantially complied with pretrial discovery requirements as to pathologists and ballistics expert. One pathologist did testify based on autopsy report he did not prepare, due to preparer's last-minute unavailability due to illness. But no generalized prohibition bars experts from testifying about autopsy reports they did not personally prepare.

United States v. Santana, 342 F.3d 60 (1st Cir. 2003), cert. denied, 540 U.S. 1206 (2004). DEA agent Jean Drouin observes defendant leave building with bag containing box-like object with rounded corners. At defendant's trial on drug charges, agent testifies that bag contained marijuana. Asked to supply basis for that opinion, agent responds that his conclusion was based on characteristics of package, intercepted phone calls, smell of marijuana in defendant's home during subsequent search, and other facts gleaned in investigation. Jury convicts. Admissibility affirmed. Defendant argues that agent should not have been permitted to testify that he smelled marijuana during search, whether as lay witness under Fed. R. Evid. 701 or as expert under Rule 702. But agent's lay opinion was grounded in facts within his personal knowledge under Rule 701, and expert testimony on this point was not required under Rule 702. Defendant also says it was error to permit agent to testify that he "knew" bag to contain marijuana. But agent was subjected to cross-examination in which his basis for that statement was explored, and any error was harmless.

United States v. Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003). Defendant is charged with possessing narcotics with intent to distribute. DEA special agent Reinaldo Lopez listens to tape recordings of defendant's wiretapped conversations and is offered at trial to testify as expert concerning defendant's use of code words. Defendant objects. District court rules that testimony is admissible as lay opinion. Jury convicts. Admissibility affirmed. It is unnecessary to decide whether testimony was properly characterized as lay opinion or expert opinion, because even if it fell in expert category, agent was qualified by training and experience to opine on meaning of code words in drug trade.

United States v. Mooney, 315 F.3d 54 (1st Cir. 2002). Prosecution expert testifies that criminal defendant's handwriting sample matches handwriting in several letters in which defendant acknowledged participation in robbery, and jury convicts. Admissibility affirmed. Defendant does not argue that expert's testimony should have been excluded entirely, but contends that expert's ultimate opinion that handwriting samples matched did not enjoy reliable forensic support. However, in opining that defendant authored letters, expert employed same methods that defendant concedes are reliable for purposes of analyzing similarities and differences in handwriting samples. Those methods have been subjected to general peer review in published journals, and one study has pegged their potential error rate at 6.5%. Also, expert was duly certified in field, takes proficiency tests twice per year, and has all analyses confirmed by second examiner. If expert's methods are sufficiently reliable to permit testimony about samples' comparative features, expert should also be permitted to testify to inferences to be drawn from those features -- here, that samples matched. District court did not abuse discretion.

United States v. Rivera-Rosario, 300 F.3d 1 (1st Cir. 2002). FBI agent Carlos Cases testifies for prosecution at drug trial re meaning of code words in narcotics trade. Admissibility affirmed. Because defendant did not raise objection at trial, review is for plain error. Agent had substantial experience and training that qualified him to opine on narcotics code words. Nor did agent's dual role as expert and fact witness confuse jury. Agent explained when opinions were based on training and experience rather than investigation of this particular case.

United States v. Lopez-Lopez, 282 F.3d 1 (1st Cir.), cert. denied, 536 U.S. 949 (2002). In drug conspiracy trial, INS agent testifies, based on experience in prior investigations, that drug importation operations use GPS to facilitate air drops and boat-to-boat transfers, and use cell phones to enable boat-to-ground communication. Admissibility affirmed. Agent's experience was sufficient basis for expert opinion under Kumho Tire, and testimony would be of assistance to average juror. Testimony's probative value outweighed any prejudicial effects, and agent was properly testifying as expert, so that restrictions on lay opinion testimony did not apply.

United States v. Sanchez-Alvarez, No. 00-1498 (1st Cir. Nov. 20, 2001) (unpublished). At sentencing phase of drug trial, U.S. Customs Agent Richard Roark testifies re meaning of encoded language used in recorded phone conversation between defendants. Affirmed. Defendant says testimony was inadmissible under Fed. R. Evid. 702, but that evidentiary rule does not apply during sentencing phase. Moreover, similar testimony has often been held admissible under Rule 702 even during trial. Testimony easily satisfied requirement, for sentencing purposes, that evidence possess sufficient indicia of reliability to support its probable accuracy.

United States v. Scott, 270 F.3d 30 (1st Cir. 2001), cert. denied, 535 U.S. 1007 (2002). Charged with tax fraud, defendant objects when prosecution offers IRS agent James Donahue to offer lay opinion identifying handwriting as defendant's. District court admits testimony and jury convicts. Admissibility affirmed. As defendant correctly points out, Fed. R. Evid. 901(b)(2) governs testimony re handwriting identification, and provides that such identification may be proved by lay opinion only if witness's familiarity with handwriting was not acquired for purposes of litigation. Agent Donahue became familiar with defendant's handwriting during multiple IRS investigations over span of several years. Defendant says agent's familiarity was therefore "acquired for purposes of the litigation" within meaning of Rule 901(b)(2), and that agent's testimony could have been offered, if at all, only if agent had been qualified as expert, as he was not. However, agent's familiarity with defendant's handwriting was not acquired for trial, but rather over several years for investigative purposes. His testimony was therefore permissible lay opinion under Rule 901(b)(2).

United States v. Shea, 211 F.3d 658 (1st Cir. 2000), cert. denied, 531 U.S. 1134 (2001). Criminal defendants object to government expert's testimony matching DNA from defendants' blood samples to physical evidence from various crime scenes. Admissibility affirmed. Expert initially overlooked nonmatching allele dot in testing sweat residue from cap, but explained when queried that his findings would be unaltered given faint intensity of nonmatching allele dot. District court conducted Daubert inquiry and concluded that any defects in expert's methods went to weight, not admissibility. Most other circuits have agreed with this approach.

United States v. Corey, 207 F.3d 84 (1st Cir. 2000). Ex-con is found in Maine with Smith & Wesson shotgun and charged with possession by felon of firearm having traveled in interstate commerce. Smith & Wesson has manufacturing plants in Massachusetts, Ohio, and Maine. To prove that weapon traveled in interstate commerce, and was not manufactured in Maine, prosecution offers ATF agent who opines that weapon was made in Massachusetts. On voir dire and cross-examination, agent states that bases for his opinion includes telephone conversation with Smith & Wesson's resident historian, technical manuals from manufacturer, and notes and records maintained by agent and ATF reflecting information gathered over time re weapons manufacturing locations. Defendant objects that testimony is primarily reliant on information gleaned in telephone conversation with Smith & Wesson and is hearsay cloaked as expert opinion. District court overrules objection and defendant is convicted. Admissibility affirmed. Standard of review is deferential, ATF agent had extensive experience in area, and phone conversation with Smith & Wesson historian simply verified opinion already formed. Consultation of markings on gun is not prerequisite to testimony re origins, and even if it were, district court could conclude that agent did base testimony partly on markings on gun. Requiring production of underlying records consulted by agent would reinstate misguided "best evidence" notions that Fed. R. Evid. 703 was intended to relax. Moreover, district court arguably had discretion to conclude that telephone conversation was information of type reasonably relied on by experts in agent's field.

United States v. Torres-Galindo, 206 F.3d 136 (1st Cir. 2000). FBI agent testifies in criminal trial that based on his ten years of experience, it is common for suspects, prior to any confession, to begin by denying everything. Jury returns guilty verdict. Admissibility reversed. This walks and talks like expert testimony, and even assuming compliance with criminal discovery rules, it would not satisfy requirement that expert testimony be helpful to trier of fact, because testimony did not involve any matters beyond commonsense understanding of average juror. However, error was harmless, because agent was extensively cross-examined, and because other evidence of guilt was overwhelming.

United States v. Nektalov, No. 05-2780 (2d Cir. Aug. 25, 2006). Jury convicts defendant on money laundering charges after hearing testimony from prosecution experts [on modus operandi of money laundering operations?]. Admissibility affirmed. Testimony shed light on practices of objectives and practices of money launderers and was therefore helpful to trier of fact.

United States v. Carter, No. 05-2177 (2d Cir. Mar. 27, 2006) (unpublished). In armed robbery trial, FBI analyst James Smith testifies for prosecution that defendant's hat is same as hat shown in photograph of man attempting to withdraw money from ATM. Jury convicts. Admissibility affirmed. Analyst explained process he used to digitize and compare photos. He has testified as expert in previous trials, and defendant offers no basis for challenging analyst's qualifications.

United States v. Adeyi, No. 05-1722 (2d Cir. Feb. 7, 2006) (unpublished). Prosecution's handwriting expert testifies in drug trial that handwriting in defendant's address book matches handwriting found on heroin packages. Jury convicts. Admissibility affirmed. Because defendant did not object at trial, review is for plain error. Second Circuit has not ruled to date on whether handwriting experts may testify to authorship of handwriting samples, and so it cannot be said that trial court's ruling was plainly erroneous. Other circuits have approved testimony on matches.

United States v. Brown, No. 03-1542 (2d Cir. Oct. 18, 2005) (unpublished). In cocaine distribution trial, defendant objects when prosecution expert testifies that defendant's handwriting matches handwriting on certain documents. Trial court admits testimony and jury convicts. Admissibility affirmed. Defendant says expert should have been limited to noting similarities between handwriting on exemplar and other documents, without offering ultimate opinion on whether handwriting on documents matched defendant's. Other circuits have rejected similar arguments. District court, to which substantial deference is owed, did not abuse its discretion. Even if it had, any error would be harmless.

United States v. Barrow, 400 F.3d 109 (2d Cir. 2005). In narcotics prosecution, detective testifies as prosecution expert on methods employed by drug dealers at various levels of distribution chain. Jury convicts. Admissibility affirmed. Testimony was brief and was helpful to jury. Defendant complains that detective's dual role as fact witness and expert risked confusing jury, but her testimony in those respective capacities was clearly demarcated. No abuse of discretion.

United States v. Londono-Tabarez, No. 02-1558 (2d Cir. Jan. 12, 2005) (unpublished), cert. denied, 125 S. Ct. 1962 (2005). DEA agent Todd Zimmerman testifies at narcotics trial to meaning of "drug code" and other language used in defendants' taped conversations. Jury convicts. Admissibility reversed in part. It is true, as defendant points out, that district court did not explicitly qualify agent as expert until halfway through his testimony. But that did not prejudice defendant, because district court eventually found that agent's participation in hundreds of narcotics investigations rendered him qualified. Trial court did err in permitting agent to interpret not only drug jargon but also ordinary expressions within average juror's understanding, such as "bring it up here" and "pain in the neck." But error was harmless.

United States v. Botero-Jaramillo, No. 02-1611 (2d Cir. Dec. 14, 2004) (unpublished). Jury convicts drug conspiracy defendant after FBI agent testifies to significance of documents found in defendant's bedroom. Admissibility affirmed. Defendant raised no objection at trial. Similar interpretive testimony by narcotics officers has been permitted in other cases, and agent's testimony was not at heart of prosecution's case. No plain error.

United States v. Gaskin, 364 F.3d 438 (2d Cir. 2004), cert. denied, 125 S. Ct. 1878 (2005). Arrested while taking possession of 86-pound load of marijuana, defendant stipulates to trial testimony of prosecution's forensic chemist, who says she personally tested drug exhibits and found all to contain marijuana. Jury convicts. Affirmed. Defendant challenges foundation of chemist's opinion, but expert may testify to conclusions without first testifying to underlying facts or data. Parties may not stipulate to admissibility at trial and attempt to raise Daubert objections on appeal under guise of sufficiency challenges. In any event, expert testimony is not necessary to support conviction for possession of controlled substance.

United States v. Cruz, 363 F.3d 187 (2d Cir. 2004). DEA agent testifies at drug trial to meaning of "watching somebody's back" as used by defendant. Jury convicts. Admissibility reversed. Courts must be especially vigilant in their gatekeeping where prosecutors call law enforcement officers to testify both as fact witnesses and as experts in same trial. Prosecution did not show that defendant used phrase as drug jargon. DEA agent therefore strayed from his area of legitimate expertise. Moreover, prosecution's intention to offer expert testimony from DEA agent was not disclosed in pretrial discovery.

United States v. Bruce, No. 02-1730 (2d Cir. Sept. 26, 2003) (unpublished). Narcotics defendant objects when prosecution offers testimony from New York City police detective Richard Addona re narcotics couriers. District court admits testimony and jury convicts. Admissibility affirmed. Detective testified that legitimate travelers usually plan travel in advance, rather than purchasing tickets on day of travel with cash. Such testimony was helpful to jury and not unduly prejudicial.

United States v. Yousef, 327 F.3d 56 (2d Cir.), cert. denied, 540 U.S. 933 (2003). In trial re 1993 World Trade Center bombing, prosecution and defense both seek to offer expert testimony on chemical analysis of materials found at bombing site and at defendants' apartment and storage shed. District court directs parties to produce experts at pretrial Daubert hearing, on pain of having their testimony precluded at trial. Defendants initially object, urging trial judge to postpone Daubert hearing until trial itself, but defendants produce experts after trial judge refuses to defer hearing. Following hearing, defendants' experts are permitted to testify at trial. Jury convicts. Affirmed. Defendants say district court's pretrial procedures prejudiced them, but district courts enjoy wide procedural latitude in resolving Daubert issues, and no defense witnesses were precluded from testifying.

United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2002), cert. denied, 541 U.S. 1092 (2004). Prosecution calls Special Agent Richard Biggs to testify concerning meaning of code words in recorded phone conversations about narcotics. Defendant objects that many portions of agent's testimony appear to represent inferences from agent's familiarity with specifics of this case, as opposed to general expertise in narcotics code words. Admissibility reversed. Problems arise when law enforcement agents assume dual roles of fact witness and expert -- e.g., potential jury confusion. "While we decline to prohibit categorically the use of case agents as experts," district courts should be especially vigilant to discharge their gatekeeping function in such contexts, and trial court erred here in admitting testimony straying beyond agent's expertise. However, error was harmless, because other evidence overwhelmingly supported conviction.

United States v. Glenn, 312 F.3d 58 (2d Cir. 2002). Eyewitness in murder trial testifies for prosecution that shortly after shooting, from distance of five or six houses, he observed bulge in clothing at defendant's waist, approximately two inches wide and four inches long. Eyewitness goes on to offer lay opinion, based on his general observations of drug dealers carrying weapons, that bulge was caused by handgun and could not have been caused by pager or some different item. Jury convicts. Admissibility reversed. Government's case was entirely circumstantial, and even crediting disputed testimony from eyewitness, no reasonable juror could have found that prosecution met its burden. But eyewitness's opinion testimony was inadmissible. Opinions based on claims to specialized knowledge must be offered by duly qualified experts, and this eyewitness neither possessed relevant qualifications nor based his conclusions on reliable or scientific methods, relying instead on his own intuitions formed from sporadic everyday observations performed over unspecified time period.

United States v. Carneglia, No. 01-1585 (2d Cir. Sept. 19, 2002) (unpublished). FBI agent Gregory Hagarty testifies at trial of organized crime figures re interpretation of recorded conversations involving defendants. Admissibility affirmed. Even if agent's interpretations sometimes extended beyond his expertise, his testimony comported with Second Circuit precedent, and any error was harmless.

United States v. Campuzano, No. 01-1261 (2d Cir. Aug. 16, 2002) (unpublished). DEA agent testifies for prosecution re use of code words in drug trade. Admissibility affirmed. Testimony was helpful to average juror, and its probative value was not outweighed by any prejudicial effect.

United States v. Hurtado, No. 00-1644 (2d Cir. June 10, 2002) (unpublished). At criminal trial, Dr. Stephan Rose testifies that customs dog's reaction to baggage indicated residual odor of either firearms or narcotics. Admissibility affirmed. Defendant did not object to testimony at trial, and expert testified at length to facts and methodology on which his testimony was based.

United States v. Andino, No. 00-1562 (2d Cir. Feb. 25, 2002) (unpublished). Counsel for criminal defendants do not raise Daubert challenge at trial level to government's expert testimony re weight of marijuana. Affirmed. No ineffective assistance, because counsel could reasonably have chosen to argue defendants' actual innocence rather than engage government in dispute over quantities of drugs.

United States v. Mulder, 273 F.3d 91 (2d Cir. 2001), cert. denied, 535 U.S. 949 (2002). Defendants in Hobbs Act prosecution say they were simply members of labor coalition using time-honored labor tactics to increase minority hires by New York City contractors, but government says defendants extorted money and jobs without actually increasing minority representation. Prosecution calls Daniel O'Rourke, supervisor of police construction task force, who testifies that minority representation at work sites did not correlate with coalition activity at sites, and also that coalition members disrupted work, took kickbacks, made threats, and engaged in violence to get their way. Prosecution also calls James McNamara, who has worked in governmental positions focused on ensuring minority opportunity at construction sites, to testify that coalition's activities did not increase number of minority employees but merely resulted in substitution of coalition's members for other minority workers, who were fired to make way. Jury convicts. Admissibility affirmed. Defendants object that prosecution experts were merely used as vehicles for hearsay testimony that could and should have been offered by fact witnesses, and also complain that district court conducted no reliability inquiry before admitting their testimony. But experts provided helpful explanations of labor coalition practices falling outside general knowledge of average juror, and permissibly based opinions on sources customarily consulted by "expert police officers," such as statements by detectives and informants. Nor must district court make explicit findings on reliability. Appellate court must "assume that the district court consistently and continually performed a trustworthiness analysis sub silentio of all evidence introduced at trial."

United States v. Feliciano, 223 F.3d 102 (2d Cir. 2000), cert. denied, 532 U.S. 943 (2001). Probationary member of Los Solidos gang complies with leader's order to shoot and kill another gang member. At shooter's RICO trial, prosecutors offer expert testimony from FBI agent Jeff Rovelli, who opines over defendant's objection that Los Solidos gang was involved in narcotics trafficking. Jury convicts. Admissibility affirmed. Defendant complains that agent's testimony went to ultimate issue of whether defendant's conduct furthered "racketeering activity," but agent did not use those words, and in any event, not all testimony on ultimate issues is prohibited. Defendant also urges that challenged testimony went beyond agent's expertise and relied on hearsay and other sources not in evidence. But experts may sometimes rely on hearsay. It is true that agent also testified as fact witness, and that lines between his factual and expert testimony were not always clear. But defense counsel were free to explore such issues on cross-examination, and did so. No abuse of discretion.

United States v. Rivera, No. 99-1678 (2d Cir. Mar. 28, 2000) (unpublished). Law enforcement officer testifies for prosecution that quantity of drugs possessed by defendant was consistent with intent to distribute, as opposed to personal use. Jury convicts. Admissibility affirmed. Law enforcement agents may rely on field experience rather than scientific training in testifying to such matters, and witness did not impermissibly opine on defendant's intent.

United States v. Adams, No. 03-2108 (3d Cir. July 10, 2006) (unpublished). STR/PCR DNA evidence is admitted at bank robbery trial over defendants' objection. Jury convicts. Admissibility affirmed. Reliability of DNA evidence was previously upheld in United States v. Trala, 386 F.3d 536 (3d Cir. 2004) [see infra].

United States v. Hurst, No. 05-2443 (3d Cir. June 20, 2006) (unpublished). Detective offers expert testimony for government in prosecution under Motor Vehicle Theft Deterrent Act. Jury convicts. Admissibility affirmed. Defendant complains that detective followed no discernible methodology, but detective's experience afforded sufficient basis for his testimony.

United States v. Reynolds, No. 04-3183 (3d Cir. Mar. 27, 2006) (unpublished). In drug conspiracy trial, agent Ken Bellis gives expert testimony on role of shootings and firearms in narcotics trafficking. Jury convicts. Admissibility affirmed. Defendant argues that testimony did not assist trier of fact, and indeed was prejudicial, since there was no evidence linking defendant to firearms or violence. But statements about firearms and violence were not central to agent's testimony, and were not prejudicial in context of general discussion of drug operations. District court reasonably concluded that evidence would aid jury in understanding nature of conspiracy alleged by government.

United States v. Patterson, No. 04-3380 (3d Cir. Mar. 14, 2006) (unpublished). Special agent Anthony Tropea testifies in narcotics trial re use of telephones in narcotics trafficking operations. Jury convicts. Admissibility affirmed. Agent had fourteen years of experience. This kind of testimony is routine. No abuse of discretion.

United States v. Mornan, 413 F.3d 372 (3d Cir. 2005). Handwriting expert testifying for prosecution says she "thinks" her opinions rise to level of reasonable degree of scientific certainty. Jury convicts. Admissibility affirmed. Defendant raised no objection below and so review is for plain error. Defendant now says expert's claim of "reasonable scientific certainty" was too half-hearted to support her testimony's admissibility under Daubert, but handwriting experts may legitimately offer opinions grounded on mere probabilities and need not invoke talismanic language.

United States v. Berry, No. 03-2803 (3d Cir. June 2, 2005) (unpublished), cert. denied, 126 S. Ct. 668 (2005). Detective testifies to meaning of drug code words in narcotics trial. Jury convicts and defendant appeals. Admissibility affirmed. Detective had ample training and experience. No abuse of discretion.

United States v. Dien Vy Phung, No. 03-4544 (3d Cir. Apr. 13, 2005) (unpublished). Defendant is arrested in connection with sale of approximately 7560 pills of methylenedioxymethamphetamine (MDMA or "Ecstasy"). To estimate total weight of MDMA for sentencing purposes, prosecution offers testimony from DEA chemist Jennifer Espinosa. Defendant moves to exclude her testimony on theory that chemist employed unreliable sampling method. District court overrules objection after declining defendant's request for Daubert hearing. Jury convicts. Admissibility affirmed. Sampling procedure was designed and approved by DEA statistical department and appears to be standard procedure in law enforcement forensic departments. Defendant's position would not have been advanced by convening Daubert hearing.

United States v. Davis, 397 F.3d 173 (3d Cir. 2005). In response to hypothetical questions, police officer opines that circumstances of defendants' arrest were consistent with drug trafficking. Jury convicts. Admissibility affirmed. Officer had extensive experience as narcotics officer, and his knowledge was not within ken of average juror. Nor did he offer impermissible testimony about defendants' state of mind or intent. Prosecution's noncompliance with discovery requirements was harmless.

United States v. Trala, 386 F.3d 536 (3d Cir. 2004), vacated on other grounds, 126 S. Ct. 1078 (2006). Trial court overrules objection by bank robbery defendant to testimony from prosecution's expert matching defendant's DNA to samples from sweatshirt and knit cap left near crime scene. Jury convicts and defendant appeals. Admissibility affirmed. Trial judge upheld reliability of PCR/STR DNA typing after painstaking and thorough analysis. No abuse of discretion.

United States v. Rutland, 372 F.3d 543 (3d Cir. 2004). Handwriting expert Gus Lesnevich testifies for prosecution that signatures on key documents in fraud scheme are forgeries, over defendant's objection that jury will be prejudicially swayed if expert with such extraordinary qualifications is permitted to testify to ultimate issues. Jury convicts. Admissibility affirmed. Juries may properly consider expert's impressive qualifications in evaluating testimony. Forbidding especially well-qualified experts from opining on ultimate issues would lead to absurd results, by incentivizing litigants to search out less qualified experts.

United States v. Mitchell, 365 F.3d 215 (3d Cir. 2004), cert. denied, 543 U.S. 974 (2004). Prosecution proposes to offer trial testimony from FBI fingerprint examiner Wilbur Johnson, who opines that two latent prints from vehicle match defendant's thumbprints, and from FBI special agent Steven Meagher, who opines to same effect and also re underlying forensic theories on which practice of fingerprint identification is based. Defendant seeks to offer expert opinions from thirteen officials at state agencies who were initially unable to identify one or both latent prints as belonging to defendant: John Otis (Maine); Janice Williams and Michael McSparrin (Mississippi); Ralph Turbyfill (Arkansas); Donald Lock (Missouri); Russell McNatt, Jr. (Delaware); Raymond York (Idaho); John Artz (Nevada); Janice Reeves (Louisiana); and Richard Higgins, Edward Pelton, Robert McAuley, and James Ruszas (New York). In addition, defense seeks to offer three experts to testify generally, on various grounds, that fingerprint identification is unscientific: Dr. David Stoney, director of forensic teaching and research institute; James Starrs, professor of law and forensic science; and Dr. Simon Cole, post-doctoral fellow with expertise in science and technology studies. To evaluate admissibility of each side's proposed testimony, district court holds five-day Daubert hearing, generating approximately 1000 pages of transcript. District court rules testimony from prosecution's experts to be reliable and admissible. District court further rules that defense experts may challenge specific identifications of defendant's prints and point to methodological defects of fingerprint identification in general, but may not testify that fingerprint identification is not scientific. Jury convicts and defendant appeals. Admissibility affirmed; exclusions affirmed. Fingerprint identification satisfies standards for reliability established in Daubert and Kumho Tire. "[T]his case does not announce a categorical rule that latent fingerprint identification evidence is admissible in this Circuit, though we trust that the foregoing [extensive] discussion provides strong guidance." District court properly excluded trial testimony on whether fingerprint evidence is scientific because such testimony would not assist trier of fact.

United States v. Katzin, No. 02-2407 (3d Cir. Apr. 19, 2004) (unpublished). Over defendant's objection, law enforcement agent testifies at trial as expert on drug jargon. Admissibility affirmed. Defendant protests that prosecution supplied no pretrial report from expert, but government did provide 469-page affidavit in which his testimony was explained. Defendant also says expert was unqualified, but defendant raised no such objection at trial, and district court legitimately approved agent's qualifications after extensive voir dire.

United States v. Bennett, No. 01-3412 (3d Cir. Aug. 29, 2003) (unpublished). On trial for conspiracy to distribute methamphetamine, defendants object when prosecution offers expert testimony from narcotics agent Kenneth Bellis re drug jargon and meaning of "breakfast" and "lunch" as used by defendants in recorded phone conversations. District court overrules objection and jury convicts. Admissibility affirmed. Although it may be close question whether agent's testimony crossed into areas unhelpful to trier of fact, any error was harmless given other evidence of guilt.

Jacobs v. Virgin Islands, No. 02-1135 (3d Cir. Dec. 12, 2002) (unpublished). Trial court dismisses criminal proceedings after defendant successfully moves to exclude prosecution's fingerprint expert under Daubert. Exclusion affirmed. Proponent bears burden of establishing that expert's testimony satisfies Daubert. Nothing in record indicates that fingerprint expert in this case used unreliable methods, but neither does record afford sufficient grounds for reversing district court's discretionary exclusion of testimony.

United States v. Davis, No. 00-3536 (3d Cir. July 26, 2002) (unpublished), cert. denied, 537 U.S. 989 (2002). District court permits postal inspectors to testify as "lay experts" that videotapes contained child pornography. Jury convicts. Admissibility affirmed. Expert opinion may be necessary to judge age in close cases, but lay opinion on age is generally competent. Moreover, this case was tried prior to amendment of Fed. R. Evid. 701 in 2000, which barred lay opinion testimony falling within Rule 702's ambit. Because witnesses possessed pertinent specialized knowledge, testimony was admissible "regardless of whether we view that testimony as lay opinion testimony akin to that of an expert or merely lay opinion testimony based on ordinary human experience."

United States v. Perez, 280 F.3d 318 (3d Cir.), cert. denied, 537 U.S. 859 (2002). At drug conspiracy trial, government expert testifies that drug trafficking organizations often rely on cell phones and pagers to avoid detection of their location by law enforcement officers. Admissibility affirmed. Defendants do not challenge witness's expertise, but contend that testimony would not fall outside knowledge of average juror, and was prejudicial. But it is not common knowledge that police are unable simultaneously to wiretap cellular calls and keep caller under surveillance, or that pagers are used by drug traffickers to transmit numerically coded messages. Testimony therefore satisfies requirement of being helpful to trier of fact, and district court did not abuse discretion in refusing to exclude testimony as unduly prejudicial.

United States v. Lopez, 271 F.3d 472 (3d Cir. 2001), cert. denied, 535 U.S. 908 (2002). When prosecution calls FBI fingerprint expert at trial, defense objects that only expert's conclusions were disclosed during discovery, not his "bases and reasons" therefor, and not his qualifications. Trial court admits testimony because defense waited until trial to raise objection and did not fulfill its "obligation to ask for a Daubert hearing." Admissibility affirmed. Assuming without deciding that prosecution's nondisclosures violated discovery provisions of Fed. R. Crim. P. 16(a), defendant has shown no prejudice.

United States v. Watson, 260 F.3d 301 (3d Cir. 2001). In narcotics trial, three law enforcement officers testify as experts for prosecution over defendant's objections. Admissibility affirmed. Because no Rule 702 objection was raised, review of testimony's admissibility under Rule 702 is for plain error. It is common and permissible for law enforcement personnel to offer expert testimony on modus operandi of illegal drug operations, and district court did not abuse its discretion in admitting such testimony here. However, in opining that defendant possessed intent to distribute, witnesses ran afoul of Fed. R. Evid. 704(b), and so conviction must be reversed.

United States v. Villarreal, No. 05-4206 (4th Cir. June 14, 2006) (unpublished). Jury convicts narcotics defendant after prosecution offers expert testimony from law enforcement officer re manner in which drug dealers record transactions. Admissibility affirmed. No abuse of discretion.

United States v. Ferguson, No. 05-4243 (4th Cir. Mar. 28, 2006) (unpublished). District court permits DEA agent to testify for prosecution re local drug trade. Jury convicts. Admissibility affirmed. Such testimony was relevant and could assist jury. Similar testimony is routinely held admissible. No abuse of discretion.

United States v. Batts, No. 04-5048 (4th Cir. Mar. 21, 2006) (unpublished). In narcotics conspiracy trial, prosecution offers expert testimony from FBI agent John Lanata on drug gangs. Jury convicts. Admissibility affirmed. No abuse of discretion.

United States v. Moreland, 437 F.3d 424 (4th Cir. 2006). Prosecution calls lab technician Carrie Kirkpatrick to testify that substance found in defendant's possession was cocaine base. Defendant objects to qualifying her as expert, but trial court states that designating her as lay or expert witness is less important than substance of her testimony, which trial court finds to be reliable. Jury convicts. Admissibility affirmed. Defendant complains that witness was unable, on cross-examination, to state error rate for lab test or to identify type of chemical reaction involved. But trial court did not abuse its discretion in concluding those issues went to weight, not admissibility. Witness did testify that her test methods were generally accepted and subject to quality controls.

United States v. Williams, No. 05-4977 (4th Cir. Feb. 17, 2006) (unpublished). In parole revocation proceedings, government relies on expert opinion from probation officer John Grant on how long marijuana remains detectable in human body. District court revokes supervised release. Admissibility affirmed. Witness had substantial training and experience.

United States v. Forrest, 429 F.3d 73 (4th Cir. 2005). Police chief Ronald Forrest meets young adolescent boy who assists Forrest in founding department's "Junior Police Program." Boy begins visiting Forrest's home and sleeping over. Forrest pays boy to pose for naked pictures. Forrest's fiancée finds pictures in Forrest's photo album and reports Forrest. At Forrest's trial on charges of sexual exploitation of child, prosecution offers testimony of Kenneth Lanning (former FBI agent with extensive experience in child abuse issues). Over Forrest's objection, Lanning describes general profile of child molesters that closely resembles Forrest's behavior (molesters are often authority figures, like police officers; they often have their victims spend the night and take their pictures; they are often apprehended only after someone else finds pictures). Jury convicts. Affirmed. Admission of Lanning's testimony is troubling, given that Forrest was not on trial for child molestation. But its admissibility need not be reached, because any error was harmless, given overwhelming evidence of Forrest's guilt.

United States v. Smith, No. 04-4248 (4th Cir. Nov. 3, 2005) (unpublished), cert. denied, ___ S. Ct. ___ (2006). Defendant is prosecuted on various firearms charges. Over defendant's objection, trial court admits testimony from ATF document examiner Carl McClary, who testifies that defendant's handwriting samples match signatures on forms completed at pawn shop to purchase handguns. Trial court also admits testimony from ATF agent Don Baucom, who opines that handguns traveled in interstate commerce. Jury convicts. Admissibility affirmed. Fourth Circuit has previously upheld handwriting analysis against Daubert challenge, and this defendant offered no evidence calling its reliability into question. Defendant says Baucom is unqualified, but district court did not abuse discretion in admitting testimony from ATF agent with extensive experience who has received advanced interstate nexus training.

United States v. McElveen, No. 04-4285 (4th Cir. Apr. 15, 2005) (unpublished), cert. denied, 126 S. Ct. 298 (2005). DEA agent testifies in narcotics trial re nature of local drug trade. Jury convicts. Admissibility affirmed. Such testimony is routinely held admissible.

United States v. Ricketts, No. 03-4721 (4th Cir. Dec. 9, 2004) (unpublished), cert. denied, 126 S. Ct. 841 (2005). Trial court excludes testimony from criminal defendant's voice spectography expert. Exclusion affirmed. Testimony was without probative value to jury because it did not tend to make any fact of consequence more probable or less so.

United States v. Benitez, No. 03-4628 (4th Cir. Apr. 6, 2004) (unpublished). Criminal defendant appeals conviction, alleging district court improperly admitted expert evidence. Admissibility affirmed. No abuse of discretion.

United States v. Gwynn, No. 03-4293 (4th Cir. Dec. 11, 2003) (unpublished), cert. denied, 541 U.S. 1018 (2004). Defendant is convicted of possession of cocaine with intent to distribute after jury hears expert testimony from Detective Peter Sullivan on modus operandi of drug dealers. Admissibility affirmed. Similar testimony has been held admissible before, and district court did not abuse its discretion. Expert boasts seventeen years' experience in Baltimore police department.

United States v. Epps, No. 03-4234 (4th Cir. Sept. 26, 2003) (unpublished), cert. denied, 541 U.S. 1053 (2004). Government agent testifies as expert for prosecution re narcotics trafficking generally and relation of firearms thereto. Jury convicts. Admissibility affirmed. This is standard fare, and assisted jury by dispelling misconceptions and explaining how particular type of firearm would aid drug dealer. Agent explained basis for his testimony. No abuse of discretion.

United States v. Winston, No. 02-4939 (4th Cir. June 16, 2003) (unpublished). Criminal defendant charged with illegal possession of firearm following conviction of felony objects when ATF agent testifies re manufacture of firearms. District court admits testimony and jury convicts. Admissibility affirmed. Agent's qualifications were established and testimony was not hearsay.

United States v. Brown, No. 02-4250 (4th Cir. Apr. 21, 2003) (unpublished), cert. denied, 540 U.S. 901 (2003). Native of Ghana is charged with knowingly entering United States on forged visa. At trial, prosecution calls: (1) expert Christopher Misciagno, who testifies that characteristics of defendant's altered visa are consistent with type of visa fraud prevalent in Ghana in 2001; and (2) INS inspector William Allen, who testifies as lay witness that defendant appeared nervous when interviewed and exhibited behaviors that Allen has been trained to recognize as those of someone who is not being completely honest. Jury convicts. Affirmed. Defendant argues that expert Misciagno's testimony was more prejudicial than probative, because Misciagno effectively opined on ultimate issue of defendant's guilt. But defendant did not preserve this point for appeal through adequate objection at trial. Defendant is correct that district court should not have permitted INS inspector to offer lay opinion on defendant's veracity, because credibility is for jury to decide, but error was harmless, because rational jury could have concluded for itself, from inspector's testimony re defendant's nervousness, that defendant was dissembling.

United States v. Barnett, No. 02-4561 (4th Cir. Apr. 11, 2003) (unpublished), cert. denied, 540 U.S. 914 (2003). Special Agent Matthew Carbone testifies at criminal trial re use of expressions "sweet potato joints" and "cabaret" as code words in drug trade. Admissibility affirmed. Numerous courts have upheld similar testimony in drug trafficking cases, and agent had extensive experience in narcotics investigations.

United States v. Crisp, 324 F.3d 261 (4th Cir.), cert. denied, 540 U.S. 888 (2003). In bank robbery prosecution, government fingerprint expert Katherine Brannan testifies to finding defendant's latent print on inculpatory note, and document analyst Thomas Currin opines that defendant authored note. Jury convicts. Admissibility affirmed. Defendant says scientific validation of fingerprinting is weak, and points out that no study has shown individual human fingerprints to be unique. But no study has shown otherwise either, and technique has long enjoyed general acceptance in forensic community. Moreover, fingerprint evidence has been employed in court since 1911. Standards governing technique's application do exist, and other courts have credited testimony that error rate is low. Further research would be welcome, but meanwhile, to bar use of this bedrock forensic identifier is unwarranted. Cross-examination can test foundations and reliability of testimony from fingerprint experts. Defendant attacks handwriting analysis on similar grounds, which fail for similar reasons. Dissent: General acceptance of these techniques prevails only among their practitioners, and scientific support for them is otherwise unimpressive. Admitting testimony was abuse of discretion.

United States v. Jackson, 327 F.3d 273 (4th Cir.), cert. denied, 540 U.S. 1019 (2003). Man abducts, tortures, rapes, and kills woman. Stun gun is found among defendant's possessions. At trial, prosecution offers Dr. Richard Stratbucker, who opines that multiple stun-gun marks were found on woman's body. Trial court admits testimony over defendant's objection, and jury convicts. Admissibility affirmed. Expert's opinion was supported by his qualifications and previous research on physiological effects of stun guns on human body.

United States v. Jones, No. 02-4672 (4th Cir. Feb. 25, 2003) (unpublished), cert. denied, 539 U.S. 949 (2003). On trial for possession of firearm by felon, defendant objects to testimony from prosecution expert re likelihood of obtaining fingerprints from firearm. District court admits testimony and jury convicts. Admissibility affirmed. Government expert possessed sufficient specialized knowledge.

United States v. Mohr, 318 F.3d 613 (4th Cir. 2003). In trial of K-9 officer for violating arrestees' civil rights through use of excessive force, government offers testimony from retired police officer and professor of criminal justice, James Fyfe, who opines that officer's release of police dog was unnecessary and violated prevailing police standards. Jury convicts. Admissibility affirmed. Testimony was helpful to trier of fact.

United States v. Smallwood, No. 02-4634 (4th Cir. Jan. 15, 2003) (unpublished), cert. denied, 538 U.S. 1048 (2003). Defendant is convicted of possession of cocaine with intent to distribute after district court admits expert testimony from detective re general characteristics of drug trade. Admissibility affirmed. District court did not abuse discretion.

United States v. Hopkins, 310 F.3d 145 (4th Cir. 2002), cert. denied, 537 U.S. 1238 (2003). After high-speed chase, defendant is apprehended with semi-automatic pistol, loose ammunition, police scanner radio, pager, digital scale, currency, and 34 baggies containing cocaine base. At trial on charges including possession of cocaine with intent to distribute, prosecution offers police officer Lawrence Phillips to testify as expert re narcotics trafficking. Jury convicts. Admissibility affirmed. Officer had extensive training and experience, and explained how defendant's possession of relevant items was consistent with narcotics trafficking.

United States v. Lysaith, No. 01-4911 (4th Cir. Oct. 16, 2002) (unpublished). Defendant in drug trial objects to testimony of forensic chemist Sarah Chenowith that substance sold by defendant was crack cocaine. District court admits testimony and jury convicts. Admissibility affirmed. Expert had bachelor's degree in chemistry, completed five month training course with police department, and also received training from DEA. Defendant complains that expert had no specific course work in analysis of controlled substances. But expert had conducted 600 such analyses for police department and testified as expert witness 22 times. District court did not abuse discretion in qualifying her as expert.

United States v. Desper, No. 01-4772 (4th Cir. Apr. 8, 2002) (unpublished). Prosecution offers law enforcement officer's testimony re modus operandi of drug dealers. Admissibility affirmed. This is standard fare.

United States v. Ware, No. 00-4733 (4th Cir. Jan. 15, 2002) (unpublished), cert. denied, 535 U.S. 1073 (2002). Law enforcement officer testifies to meaning of drug code words used by criminal defendant in taped conversation. Admissibility affirmed. No abuse of discretion.

United States v. Rogers, No. 01-4455 (4th Cir. Dec. 20, 2001) (unpublished), cert. denied, 535 U.S. 2041 (2002). Criminal defendant objects to testimony from two Secret Service agents that latent print matched exemplar supplied by defendant. Admissibility affirmed. Defendant contends it is untested and unproven that all fingerprints are unique, but government cited numerous studies supporting contrary view, and defendant offered no evidence that fingerprinting is unreliable. To extent that fingerprint matching involves subjective judgment, possibility of error was mitigated by having two experts examine prints. Defendant contends that no uniform standards govern fingerprint matching, but in fact such standards are supplied by training, peer review, and double checking. Agents here found seven corresponding characteristics between two thumbprint samples, which is adequate to meet modern criteria. Moreover, every circuit addressing issue, both before and after Daubert, has held fingerprint evidence admissible, and many courts have even refused to conduct evidentiary hearings on this issue. In any event, any error would be harmless, as evidence against defendant was overwhelming.

United States v. Wright, No. 01-4270 (4th Cir. Dec. 11, 2001) (unpublished). Detective testifies for prosecution as expert re drug trafficking patterns and practices. Admissibility affirmed. This type of testimony is routinely upheld, and expert possessed substantial experience.

United States v. Johnson, No. 01-4011 (4th Cir. Nov. 16, 2001) (unpublished). Defendant in drug trial offers expert in narcotics investigations to rebut informant's understanding of tape-recorded conversations with defendant. District court excludes testimony. Jury convicts. Exclusion affirmed. Because defendant cross-examined government witnesses on these issues and testified to his own understanding of phone conversation, district court properly found that defendant's expert would not assist trier of fact. No abuse of discretion.

Powell v. Wilborn, No. 00-2086 (4th Cir. Apr. 25, 2001) (unpublished). Man on receiving end of pepper spray sues police under section 1983, alleging excessive use of force during traffic arrest. He alleges his behavior was compliant and passive; police allege he resisted arrest. Police offer forensic pathologist's testimony re driver's blood alcohol level and its potential effects on behavior. Driver objects, on grounds that testimony is not relevant under Daubert and also because forensic pathologist is not an MD. Admissibility affirmed. No abuse of discretion.

United States v. Lightfoot, No. 00-4357 (4th Cir. Mar. 28, 2001) (unpublished). FBI agent testifies to similarity between articles seized from getaway vehicle and items in video images from bank surveillance system showing articles worn or used by robber. Admissibility affirmed. Defendant argues testimony did not involve judgments that laypersons were unable to make and was therefore unhelpful to jury. But trial court properly admitted testimony of agent as expert testimony under Daubert after extensive voir dire established its scientific reliability and relevance.

United States v. Hadden, No. 99-4503 (4th Cir. July 18, 2000) (unpublished), cert. denied, 531 U.S. 1201 (2001). Charged with possession of methamphetamine with intent to distribute, defendant offers testimony from expert on police practices, who opines that defendant's arrest in reverse sting operation was premature. District court excludes testimony and jury convicts. Exclusion affirmed. Testimony would not have assisted jury in determining any fact in issue.

United States v. Jones, No. 99-4413 (4th Cir. Feb. 22, 2000) (unpublished). Prosecution offers testimony from law enforcement agent on mode and operation of drug dealing. Jury convicts. Admissibility affirmed. No abuse of discretion.

United States v. Garza, 448 F.3d 294 (5th Cir. 2006). Defendant in meth trial offers forensic document examiner Linda James to testify that signature of witness on defendant's confession and consent to search does not match known exemplars. District court excludes testimony and jury convicts. Exclusion affirmed. Expert admitted that examining original documents would be best practice, that she examined only copies, and that she did not know how many times they had been recopied. No abuse of discretion.

United States v. Mojica, No. 04-10802 (5th Cir. Dec. 7, 2005) (unpublished). Narcotics agent testifies in drug prosecution that "tamales" was used as code word for drugs, as opposed to money. Jury convicts. Admissibility reversed. Law enforcement agents may testify on drug jargon, but their opinions must be based on sufficient facts or data. Because there appears to have been little or no support for agent's testimony, district court may have abused its discretion in admitting it. But any error was harmless.

United States v. Hernandez-Rodarte, 04-40887 (5th Cir. June 23, 2005) (unpublished). Criminal defendant raises no objection at trial to government's fingerprint identification testimony. Jury convicts. Admissibility affirmed. No plain error.

United States v. Hicks, 389 F.3d 514 (5th Cir. 2004), cert. denied, 126 S. Ct. 1022 (2006). Defendant is charged with possession of firearm and ammunition while subject to domestic restraining order. Prosecution offers testimony from ballistics expert John Beene, who opines that shell casings found in field were fired from rifle found on defendant's premises. Jury convicts. Admissibility affirmed. Trial court permissibly found witness to be qualified based on his extensive experience. Defendant complains that witness could not say whether technique he employed had been tested, was validated in peer-reviewed literature, had been studied for error rate, or was subject to objective standards. But witness testified that he relied on authoritative literature from the Association of Firearm and Tool Mark Examiners, and that he followed well-accepted procedures whose error rate approaches zero. No abuse of discretion.

United States v. Ashlock, No. 03-10615 (5th Cir. Aug. 3, 2004) (unpublished), vacated on other grounds, 543 U.S. 1136 (2005). Prosecution in narcotics case presents three forensic experts who testify regarding chemical identity of substances seized from defendant's person and residences, over defendant's objection that experts have not disclosed what testing protocols they followed. District judge overrules objection and jury convicts. Admissibility affirmed. Under Fed. R. Evid. 702, experts are not required to disclose their protocols in such detail as defendant contends. Proponent is required only to show by preponderance of evidence that testimony is admissible. Prosecution satisfied that requirement here through evidence that: (1) each expert held bachelor's degree in chemistry and had extensive on-the-job training in forensic chemistry; (2) each test performed by experts was generally accepted in field of forensic chemistry; (3) each test was performed in accordance with standard laboratory procedures; and (4) each expert had his or her results reviewed by another chemist. No abuse of discretion.

United States v. Wright, No. 03-20426 (5th Cir. Feb. 16, 2004) (unpublished). On trial for making false statements to FBI, offers Dr. Walter Quijano to testify re interrogation techniques employed in defendant's initial confession. District court excludes testimony and jury convicts. Exclusion affirmed. Circumstances of defendant's initial confession were never presented to jury, and so expert's testimony failed Daubert's relevancy prong. Defendant also objects for first time on appeal that FBI agent gave testimony beyond scope of his expertise, but given overwhelming evidence against defendant, there was no plain error.

United States v. Williams, 343 F.3d 423 (5th Cir.), cert. denied, 540 U.S. 1093 (2003). Sheriff shoots unarmed suspect in back and is charged with criminal violation of federal civil rights laws. Prosecution offers testimony from three eyewitness law enforcement officers who opine that shooting was unreasonable. Jury convicts and defendant appeals. Affirmed. Although testimony from officers was offered as lay opinion, sheriff argues it should be treated as expert testimony because based on specialized knowledge, in which case testimony is inadmissible, sheriff says, because experts may not opine on defendant's state of mind under Fed. R. Evid. 704(b). Sheriff did not raise this objection at trial, and so review is for plain error. Sheriff's Rule 704(b) argument is unavailing, because even if testimony is treated as expert evidence, opinion on reasonableness of shooting does not relate to sheriff's state of mind. True, admission of testimony was error under Rule 704(a), which bars testimony offering legal conclusions, but that error was harmless, because other evidence against sheriff was overwhelming.

United States v. Ramos, No. 01-21250 (5th Cir. Aug. 4, 2003) (unpublished). Criminal defendant offers expert to testify that voice on inculpatory audiotape was not defendant's. District court excludes testimony and jury convicts. Exclusion affirmed. Defendant did not establish that expert's testimony satisfied Daubert's requirements. Even if exclusion of testimony were erroneous, it would have been harmless error, because other tapes undisputedly containing defendant's voice represented overwhelming evidence of guilt.

United States v. Green, 324 F.3d 375 (5th Cir.), cert. denied, 540 U.S. 823 (2003). At defendant's trial for drug-related offenses, prosecution offers expert testimony on drug trafficking and money laundering from DEA agents Mark Lusco and Rudy Babin. District court admits testimony and jury convicts. Admissibility affirmed. Defendant argues that experts' testimony should have been excluded for bias, because agents also participated in factual investigation of case. Because this theory is raised only on appeal, district court's decision admitting testimony is reviewed only for plain error. Agents who participated in investigation are not thereby barred from testifying as experts. Defendant was free to attack agents' credibility on cross-examination, and did attack it in closing argument.

United States v. Gutierrez-Farias, 294 F.3d 657 (5th Cir. 2002), cert. denied, 537 U.S. 1114 (2003). Man arrives at border in pickup, pulling tractor on flatbed trailer. Border Patrol finds 309 pounds of marijuana in tractor tires. At trial, DEA agent Robert Afanasewicz testifies as prosecution expert on drug smuggling, opining that persons found crossing borders with drugs in hidden compartments of vehicles generally know that drugs are there. Jury convicts. Admissibility reversed. Rather than offering specialized knowledge to assist jurors in understanding facts of case, agent's testimony amounted to simple generalization. Agent's opinion invited jurors to conclude that because persons in defendant's position are usually aware of their possession of drugs, defendant must have been aware himself. Not only did this constitute forbidden opinion testimony on ultimate issue in case, but it was also expert testimony on mens rea in violation of Fed. R. Evid. 704(b). But error was harmless in light of other evidence supporting conviction.

United States v. Wise, 221 F.3d 140 (5th Cir. 2000), cert. denied, 532 U.S. 959 (2001). Members of organization seeking to liberate Texas from federal influence are tried, by feds, for conspiracy to use weapons of mass destruction. Prosecution calls FBI agent who explains why botulism, rabies, and HIV fall within statutory definition of "biological agent." Admissibility affirmed. Agent was Biology Program Manager in Hazardous Materials Response Unit within FBI, held Ph.D. in human genetics, had done post-doctoral work on viral replication at Harvard Medical School, and had authored eleven or twelve relevant publications. His testimony that relevant toxins were "biological agents" pertained to scientific knowledge and satisfied Daubert. Defendants' contrary arguments are meritless. Moreover, even if this testimony were inadmissible, district court's failure to exclude it would be harmless error.

United States v. Drones, 218 F.3d 496 (5th Cir. 2000), cert. denied, 531 U.S. 1151 (2001). District court grants habeas relief on theory that defendant's counsel afforded inadequate assistance in not pursuing expert voice spectrography evidence to show that voice on tape was not defendant's. Reversed. Defendant's own expert in habeas proceedings testified that voice spectrography analysis did not rest on proven theoretical basis, and no federal decision post-dating Daubert has addressed admissibility of voice spectrography analysis (nor is that question reached here). Given state of law at time of trial, it would be speculative to say that counsel's failure to pursue such evidence resulted in exclusion of admissible evidence. In any event, defendant cannot show prejudice, because other strong circumstantial evidence pointed to conviction.

United States v. Norris, 217 F.3d 262 (5th Cir. 2000), cert. denied, 534 U.S. 870 (2001). Lawyer moves $500k from firm money market accounts to his personal account. Partners sue lawyer in state court. Lawyer then withdraws money from personal account and places it in safe deposit box. Partners obtain judgment in state case. Lawyer then removes money from safe deposit box. Partners attempt to execute on state judgment. Lawyer then says he "spent" money. Partners bring involuntary bankruptcy proceeding. Lawyer then testifies in bankruptcy case that in fact he poured gasoline on money and burned it in waste receptacle at his residence. Bankruptcy court disbelieves lawyer's story and orders money produced. Lawyer refuses. Bankruptcy court holds lawyer in civil contempt, ordering that he be incarcerated until he discloses location of money. Lawyer refuses and remains incarcerated until indicted for perjury. At perjury trial, prosecution offers testimony from ATF agent who attempted to recreate lawyer's alleged currency conflagration. Admissibility affirmed. Trial court erroneously asserted that Daubert was inapplicable, but in substance district court conducted reliability analysis and permissibly found that conditions of recreation, although not necessarily identical in every respect to bonfire that lawyer claims he set, were sufficiently similar to warrant admissibility.

United States v. Lopez-Medina, No. 05-5891 (6th Cir. Aug. 25, 2006). At narcotics trial, two DEA agents testify as fact witnesses and also as experts re common practices of narcotic traffickers. Jury convicts. Admissibility affirmed. Defendant's reliability objections are unavailing; both agents had years of training and experience. Defendant also objects, however, that no clear distinction was drawn at trial between lay and expert components of their testimony, nor any cautionary instruction issued. This was clear error, and it was not harmless. Remanded for new trial.

United States v. Whitmore, No. 05-6331 (6th Cir. Aug. 25, 2006) (unpublished). At sentencing phase, police officer testifies over defendant's objection that marijuana packaged in small baggies suggests possession with intent to distribute. Admissibility affirmed. Federal Rules of Evidence do not apply at sentencing phase. In any event, testimony from narcotics officers on modus operandi of drug dealers is generally held to be reliable.

United States v. Nichols, No. 04-4186 (6th Cir. July 6, 2006) (unpublished). Jury convicts narcotics defendant after police officers testify as experts re methods of drug dealers. Admissibility affirmed. Defendant says officers were too inexperienced to testify as experts. But officers had been trained in narcotics and served in special narcotics unit. Both had over two years' experience on job, and both had investigated 60-80 cases.

United States v. Swafford, 385 F.3d 1026 (6th Cir. 2004), cert. denied, 543 U.S. 1169 (2005). In narcotics possession trial, DEA agent Frank Ledford testifies for prosecution that firearm found at defendant's premises is indicative of intent to distribute. Detective Jimmy Smith also testifies for prosecution that dollar amounts written on business card correspond to cost for certain quantities of methamphetamine. Jury convicts. Admissibility affirmed. No objection was raised below and so review is for plain error. No abuse of discretion.

United States v. Bugg, No. 03-5556 (6th Cir. June 29, 2004) (unpublished), cert. denied, 543 U.S. 975 (2004). ATF agent testifies for prosecution about difficulty of lifting fingerprints from firearms. Admissibility affirmed. Defendant says agent was unqualified because he lacked training in fingerprint analysis. However, agent did not testify on fingerprint analysis, but on difficulty of obtaining fingerprints from weapons. On that subject, he was qualified.

United States v. Combs, 369 F.3d 925 (6th Cir. 2004). In drug trafficking trial, Kentucky police officer Dan Smoot testifies for prosecution on modus operandi of drug dealers. Admissibility affirmed. Officer did not testify directly on subject of defendant's intent to distribute narcotics, as would be prohibited by Fed. R. Evid. 704(b). Rather, officer testified to conduct consistent with intent, leaving it to jury to infer intent. No abuse of discretion.

United States v. Thomas, No. 02-5078 (6th Cir. May 21, 2004) (unpublished). Experienced DEA agent Jack Sparks testifies that 47 pounds of marijuana in defendant's possession is quantity consistent with commercial distribution, not personal use. Agent also testifies to general use by drug dealers of high capacity weapons, cellular phones, pagers, and commercial vehicles. Jury convicts. Admissibility affirmed. Law enforcement testimony on modus operandi of drug dealers is routinely admitted. No abuse of discretion.

United States v. Beverly, 369 F.3d 516 (6th Cir. 2004)369 F.3d 516 (6th Cir.), cert. denied, 543 U.S. 910 (2004). District court overrules bank robbery defendant's objections to expert testimony from "Dr. Melton" on mitochondrial deoxyribonucleic acid (mtDNA) identification, and jury convicts. Admissibility affirmed. It is true that mtDNA is less precise identifier than nuclear DNA, but basic methodology is similar, other courts have upheld mtDNA identification, and it enjoys general acceptance. Defendant complains that lab was not accredited, but there is no evidentiary requirement for lab's certification by external agency, and expert is well-credentialed. Defendant also says expert's procedures allowed room for contamination, but no evidence suggested contamination of sample in this case. District court did not abuse discretion in permitting statistical testimony that less than one per cent of population would have same mtDNA pattern as hair recovered from bank robbery site, or in ruling that testimony's probative value outweighed any prejudicial effect.

United States v. Demjanjuk, 367 F.3d 623 (6th Cir.), cert. denied, 543 U.S. 970 (2004). In denaturalization proceedings, government offers expert testimony from "Dr. Sydnor" to support identification of defendant. District court admits testimony in bench trial and enters judgment revoking defendant's citizenship. Admissibility affirmed. Defendant complains that district court failed to discharge its gatekeeping function because it did not evaluate reliability of expert's "archival search methodology." But district court did not abuse discretion in admitting testimony, given its colloquy with defense counsel stating that trial court would consider defendant's objections in evaluating testimony's weight.

United States v. Donald, No. 02-6369 (6th Cir. Feb. 6, 2004) (unpublished), cert. denied, 541 U.S. 1054 (2004). Man robs bank and leaves, but not before being captured on security videotape. When police arrive at bank, witnesses give description of perpetrator. Leaving bank to canvass neighborhood, police interview manager of nearby apartment building to inquire whether she has seen someone meeting witnesses' description. Manager responds that she just made deposit at bank and noticed man from apartment building who meets eyewitnesses' description. Police take man to teller, who cannot identify him. Police later search man's apartment and find cash and other evidence. At trial, police officer who has watched bank's security videotape testifies that man captured on videotape is man who robbed bank. Jury convicts. Admissibility affirmed. Defendant protests that officer's statement lacked foundation because officer lacked personal knowledge. But standard for personal knowledge under Fed. R. Evid. 602 is low. It is true that officer did not witness robbery. But his testimony, which became necessary when teller could not identify defendant, was grounded in descriptions supplied by witnesses and his own observation of videotape. Thus officer's testimony "was not simply conjecture, but was based on his personal observations and conclusions made during the course of his investigation." Defendant also says officer's statement was actually expert opinion that should have been excluded under Fed. R. Evid. 702 because unhelpful to trier of fact. But that objection was not raised at trial. In any event, it was really permissible lay opinion under Fed. R. Evid. 701, because it concerned identification of suspect, an area within lay competence. [Unless we are missing something, this opinion simply ignores Rule 701's failure to afford dispensation from the hearsay rule for lay opinion. -- ed.]

United States v. Rodgers, No. 02-3975 (6th Cir. Jan. 6, 2004) (unpublished), cert. denied, 541 U.S. 1055 (2004). In bank robbery trial, prosecution presents criminalist's testimony on ballistics and footprint evidence. Jury convicts. Admissibility affirmed. Because defendant raised no objection at trial, review is for plain error. As regards footprint evidence, criminalist testified about his qualifications, his methods, and their general forensic acceptance. As regards ballistics, it is true that prosecution laid little foundation for expert's opinion. But expert did testify concerning his qualifications, and his "firing pin comparison" method was, at least, identified.

United States v. Olender, 338 F.3d 629 (6th Cir. 2003). Charged with possession of ammunition by felon, defendant offers testimony from criminologist, who seeks to comment adversely on police investigation, based on taped witness interviews, documents, and other evidence. District court concludes that expert testimony is unnecessary on question whether defendant possessed ammunition, because fact witnesses can offer direct evidence on that point. District court also declines to permit criminologist to offer lay opinion on same issues, because criminologist's testimony would lack requisite foundation in lay witness's personal knowledge. Jury convicts. Exclusion affirmed. No abuse of discretion.

United States v. Sanders, No. 01-2646 (6th Cir. Mar. 7, 2003) (unpublished), cert. denied, 540 U.S. 852 (2003). On trial for committing bank fraud in student loan applications, defendants object when prosecution offers handwriting analyst as expert. District court qualifies witness as expert and jury convicts. Admissibility affirmed. Defense objected only to witness's qualifications, and so defense failed to preserve issue of testimony's reliability under Daubert for appeal. In any case, district court did not err in admitting testimony from experienced handwriting analyst who carefully explained basis for his opinion.

United States v. Miller, No. 01-3959 (6th Cir. Feb. 7, 2003) (unpublished). Did handgun found in defendant's possession in Ohio travel in interstate commerce? ATF agent Nicholas Vouvalis opines for prosecution that it did, and jury convicts. Admissibility affirmed. Because defendant did not object to testimony at trial, review is for plain error. Agent had extensive training and expertise as firearms interstate nexus expert, and explained that his opinion was based on markings on gun indicating it was manufactured in Spain and imported via New Jersey.

United States v. Trammell, No. 01-3027 (6th Cir. Dec. 2, 2002) (unpublished). In narcotics trial, prosecutors offer FBI agent as expert in drug trafficking. District court finds scope of claimed expertise to be overbroad, and determines admissibility on question-by-question basis. Agent then testifies that amount of crack cocaine in defendant's possession exceeded normal quantities for personal use and was not "in a personal use form." Jury convicts. Admissibility affirmed. Courts have routinely allowed law enforcement officers to testify as experts on narcotics trafficking because they possess knowledge and experience not within everyday experience of most jurors.

United States v. Smith, No. 00-5640 (6th Cir. Dec. 18, 2001) (unpublished), cert. denied, 535 U.S. 1059 (2002). Defendants are convicted of bank robbery based on evidence including testimony from eyewitnesses and defendants' own girlfriends. On appeal, defendants argue that police forensic technician should not have been permitted to testify re microscopic examination of hair samples. Conviction affirmed. Forensic technician admitted that hair sample comparison includes subjective elements, but even if admitting forensic testimony was error, it was harmless, because evidence overwhelmingly supported guilt.

United States v. Glover, 265 F.3d 337 (6th Cir. 2001), cert. denied, 534 U.S. 1145 (2002). Carjacking defendant objects when prosecution calls Agent Thomas Zimmer of National Insurance Crime Bureau to opine based on serial number that vehicle was manufactured outside Tennessee. District court admits testimony and jury convicts. Admissibility affirmed. Defendant complains that interstate nexus was ultimate question of fact that should have been left to jury. But ultimate decision whether to credit testimony did rest with jury. Properly qualified expert may testify that vehicle was manufactured outside state where sold when essential element of crime is movement of vehicle in interstate commerce.

United States v. Brown, No. 99-5395 (6th Cir. Sept. 6, 2000) (unpublished), cert. denied, 531 U.S. 1175 (2001). Drug defendant contends he was just using, not selling, but prosecution offers testimony of Kentucky police officer that quantity of drugs and defendant's behavior indicate he possessed drugs with intent to distribute. Admissibility affirmed. Even though officer admitted he had never read studies drawing definitive link between quantity of drugs and intent to distribute, officer could opine based on years of experience in law enforcement.

Fair v. Franklin County, No. 98-4237 (6th Cir. May 11, 2000) (unpublished). Woman is arrested at sobriety checkpoint but later released without charges. She sues county and law enforcement personnel, alleging arrest without probable cause in violation of her civil rights. At trial, defendants offer testimony from police lieutenant re elements of probable cause. Jury returns verdict in defendants' favor. Affirmed. Officer's experience qualified him as expert, and any error in admitting his testimony was harmless.

Gates v. City of Memphis, No. 98-5921 (6th Cir. Apr. 6, 2000) (unpublished). Off-duty cop is shot and killed by on-duty cop. Widow brings civil rights and wrongful death action against city, and offers testimony on trajectory analysis from forensic consultant. District court excludes evidence because witness's experience and training have focused primarily on crime scene reconstruction in general, not trajectory analysis in particular. Jury returns verdict for defendants. Exclusion affirmed. Because witness had no formal training in trajectory analysis, had no post-secondary education in physics, anatomy, or physiology, made no measurements, and did no scientific testing on instant shooting scene, district court did not abuse discretion in excluding his testimony.

United States v. Tocco, 200 F.3d 401 (6th Cir. 2000), cert. denied, 539 U.S. 926 (2003). FBI agent testifies as expert on organized crime in racketeering trial. Admissibility affirmed. Organized crime is subject beyond ken of average juror and agent had extensive experience in area.

United States v. Collins, No. 05-4279 (7th Cir. July 24, 2006) (unpublished). Defendant is convicted of possession of firearms by felon, after district court permits BATF Special Agent James Cronin to opine that defendant's weapons traveled in interstate commerce. Defendant's counsel seeks leave to withdraw on appeal, contending that no nonfrivolous appellate issues are presented. Withdrawal approved; appeal dismissed. Cronin is qualified by years of experience and training, and he relied on common and approved methods, including visual inspection of guns, research, and consultation with other experts. It would be frivolous to appeal lower court's decision admitting his testimony.

United States v. Garcia, 439 F.3d 363 (7th Cir. 2006). In narcotics trial, prosecution offers expert opinion from Sergeant Robert Coleman, police officer, who testifies that drug traffickers do not ordinarily engage in transactions when innocent adults are present. Jury convicts. Admissibility affirmed. Defendant did not raise any Rule 702 objection at trial. Defendant also argues that permitting this testimony violated his presumption-of-innocence rights, but in combination with other evidence, sergeant's testimony rationally supported inference of guilt, without imposing any mandatory requirement that jury accept that inference.

Pasha v. Gonzales, 433 F.3d 530 (7th Cir. 2005). Albanian woman seeking asylum on grounds of political persecution presents immigration judge with nine Albanian documents, including subpoenas, police report, and summons. Immigration service offers testimony from forensic document examiner Gideon Epstein, who opines that four of those documents are probably forged, because they do not contain diacritical marks and because Albania cannot afford color laser printers. Immigration judge denies asylum and Board of Immigration Appeals affirms. Admissibility reversed. Although Daubert does not literally govern in immigration proceedings, "spirit of Daubert" applies. Expert admitted lack of knowledge on printing technology available in Albania. Considering number of asylum applicants from Albania, and considering that between 400,000 and one million Albanians reside in United States, Department of Homeland Security should be able to produce some witness competent to testify to likelihood that documents barren of diacritical marks and produced by color laser printing were probably forged.

United States v. Moore, 425 F.3d 1061 (7th Cir. 2005). In prosecution for cocaine distribution, government relies on testimony from forensic chemist Jennifer Yezek. Jury convicts. Admissibility affirmed. Defendant purports to raise Daubert challenge to expert's testimony, but defendant's only specific argument is that her testimony was unreliable because government failed to establish chain of custody for drugs she analyzed. Prosecution's evidence on chain of custody was sufficient, and district court therefore did not abuse its discretion.

United States v. Davenport, No. 05-1336 (7th Cir. Oct. 7, 2005) (unpublished), cert. denied, 164 L. Ed. 2d 111 (2006). Charged with interstate transportation of minor with intent to engage in criminal sexual activity, defendant protests to no avail when prosecution offers expert testimony from Kenneth Lanning (former FBI agent with extensive experience in child abuse issues) on how pedophiles use internet to exploit children. Jury convicts. Admissibility affirmed. Defendant says Lanning's testimony was obvious, but purpose of expert social scientific testimony may legitimately be to sift fact from fiction and disabuse jurors of mistaken "common knowledge." Defendant says Lanning intimidated jurors, but he did not threaten them in any way. Defendant finally objects that Lanning's testimony invaded province of jury, but that objection has not been valid since 1975 adoption of Federal Rules of Evidence (see Fed. R. Evid. 704(a)).

United States v. Gray, 410 F.3d 338 (7th Cir. 2005), cert. denied, 126 S. Ct. 1177 (2006). DEA agent testifies re drug code language in narcotics prosecution. Jury convicts. Admissibility affirmed. Agent had 12 years of experience as narcotics officer, boasted specialized training, and also had experience with these defendants. He was sufficiently qualified.

United States v. Parra, 402 F.3d 752 (7th Cir. 2005), cert. denied, 126 S. Ct. 1181 (2006). Prosecution relies on testimony from DEA agent on modus operandi of drug dealers. Jury convicts. Admissibility affirmed. Agent has extensive training and experience. Defendant argues that agent has not previously testified as expert witness, but "there is a first time in court for every expert." District court observed proper safeguards to deal with witness's dual capacity as fact witness and expert. His testimony was helpful to jury, and was not more prejudicial than probative. No abuse of discretion.

United States v. Allen, 390 F.3d 944 (7th Cir. 2004). Police forensic expert Thomas Pitzen testifies at bank robbery trial that shoes defendant was wearing at time of arrest could have made tennis shoe impression left in cement dust at scene of crime. Jury convicts and defendant appeals. Admissibility affirmed. Defendant says that expert's testimony did not satisfy Daubert's relevance prong, because expert testified that match was not definitive, but expert need not opine on ultimate issue to be of assistance to trier of fact. Defendant also argues that subject matter did not call for expert testimony, because laypersons could compare impression with shoe. But witnesses testified for prosecution at evidentiary hearing that shoeprint evaluation requires trained eyes. Defendant also contends that testimony was unreliable. But same witnesses testified at evidentiary hearing that shoeprint identification techniques are generally accepted and subject to peer review.

United States v. Ceballos, 385 F.3d 1120 (7th Cir. 2004), cert. denied, 125 S. Ct. 1871 (2005). Over defendants' objections, DEA agent Michael Kress testifies in narcotics trial on meaning of drug code language used by defendants in intercepted communications. Jury convicts. Admissibility affirmed. Defendants protest that conversations were in Spanish, in which agent is not fluent. District court did not abuse discretion in permitting agent to testify based on translations of those conversations.

United States v. George, 363 F.3d 666 (7th Cir. 2004). Criminal defendant unsuccessfully objects to prosecution's introduction of expert testimony re fingerprint identification. Jury convicts. Admissibility affirmed. Seventh Circuit has previously held that fingerprint identification is generally accepted, has low rate of error, and can be objectively tested. As for defendant's complaint that identification was unreliable because based on partial prints, issue of whether prints match is best left to trier of fact. No abuse of discretion.

United States v. Williams, No. 02-4361 (7th Cir. Mar. 24, 2004) (unpublished). Defendant is charged with possession of firearms by felon. To prove that weapons traveled in foreign and interstate commerce, prosecution offers testimony from ATF firearms expert John Phinney. Jury convicts. Admissibility affirmed. Defendant did not challenge expert's testimony below, and so review is for plain error. Expert has five years' ATF experience, attended ATF's "Interstate Nexus School," also has military training on firearms identification, and has testified as expert on interstate nexus issues on four previous occasions. No abuse of discretion.

United States v. Bowman, 353 F.3d 546 (7th Cir. 2003). In prosecution for possession of handgun by felon, policeman testifies he found weapon in defendant's pocket during search incident to arrest and removed magazine and one bullet from chamber to make weapon "safe." His testimony is corroborated by his partner. Defendant, however, claims gun was planted, and offers testimony from three friends and relatives who witnessed arrest and claim that police retrieved no weapon. To bolster police officers' testimony, prosecution calls ATF fingerprint expert Richard Canty, who testifies to finding palm print and thumbprint on handgun, but says they do not match defendant and have not been positively identified. Over defendant's objection, prosecution asks Canty whether location of thumbprint is consistent with hypothesis that someone left print while making weapon "safe." Canty answers affirmatively. Jury convicts. Admissibility affirmed. Defendant argues that Canty, although qualified as fingerprint expert, was not qualified as expert in gun handling. Defendant moreover contends that Canty's testimony was not founded on reliable methods or data. But Canty has 37 years' experience in recovering prints from weapons, and demonstrated his familiarity with this handgun during his testimony.

Gebrendrias v. Ashcroft, No. 02-4254 (7th Cir. Oct. 14, 2003) (unpublished) (see the briefs). Ethiopian woman seeks asylum, claiming fear of persecution based on her membership in Oromo Liberation Front ("OLF"). In support, she offers letter vouching for her OLF membership. Government offers testimony from forensic document examiner Larry F. Ziegler, who opines that letter is forged. Immigration judge credits expert's testimony and denies asylum. Board of Immigrations Appeals affirms. Admissibility affirmed. Woman argues that expert's testimony did not satisfy Daubert, but traditional rules of evidence do not apply in immigration proceedings, where sole test for admissibility is whether evidence is "probative" and "fundamentally fair." Expert was well-qualified, and pointed to various attributes (e.g., paper size, spacing of characters, photocopying of seal) credibly indicating that document was not of Ethiopian origin.

Deputy v. Lehman Bros., Inc., 345 F.3d 494 (7th Cir. 2003) (see the briefs). Is that plaintiff's signature on arbitration agreement? Defendants say yes, relying on testimony from handwriting expert Diane Marsh. But district court excludes her testimony, finding it scientifically unreliable, and also concluding that expert gave misleading answer about whether her testimony had ever been found unreliable in previous cases. Exclusion reversed. Expert's answer re previous testimony was not inaccurate, and district court misread earlier decision in so concluding. District court's reliability analysis focused too heavily, and improperly, on credibility issues, rather than soundness of expert's methods. Testimony from handwriting experts is not admissible per se, but district court should conduct proper Daubert analysis on remand.

Buie v. McAdory, 341 F.3d 623 (7th Cir.), cert. denied, 540 U.S. 1061 (2003). At state murder trial, forensic expert Maria Pulling testifies that hair samples from crime scene came from defendant. On federal habeas review, defendant argues that state trial judge violated due process by permitting expert to overstate strength of her conclusions. District court denies relief. Affirmed. Even assuming expert was mistaken, Constitution does not impose Fed. R. Evid. 702 on state courts. Defendant was duly afforded what constitutional rights he had -- i.e., opportunity to cross-examine expert and present contrary evidence.

United States v. Sutton, 337 F.3d 792 (7th Cir.), cert. denied, 540 U.S. 1050 (2003). During investigation of armed robberies, government investigators collect fingerprints from locations that robbers touched. Analysis by police lab concludes that prints do not match those of suspects who are charged. At trial, suspects seek to introduce lab reports to show innocence. District court excludes reports because "without an expert to explain them, they are of no evidentiary value." Jury convicts. Exclusion affirmed. Defendants urge that reports at issue are self-authenticating public records falling within hearsay exception in Fed. R. Evid. 803(8)(C). Defendants are correct. Under Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), hearsay exception in Rule 803(8)(C) encompasses opinions and is not limited to purely factual evidence. But hearsay issues relate only to form of testimony, not its substantive admissibility. District court did not invoke any specific evidentiary rule in excluding reports, but its decision can be interpreted as one excluding evidence under Fed. R. Evid. 403 because reports, although relevant, were more prejudicial than probative without live expert testimony to explain them. Alternatively, district court may have intended exclusion to rest on Daubert. There is no question that fingerprint analysis, as general methodology, satisfies Daubert. But reports merely stated bald conclusions, and district court could have concluded, in its sound discretion, that record failed to demonstrate that fingerprint methodology was reliably applied. Alternatively, any error was harmless.

United States v. Mansoori, 304 F.3d 635 (7th Cir. 2002), cert. denied, 538 U.S. 967 (2003). In drug conspiracy trial, district court permits police officer and gang specialist Michael Cronin to offer opinion testimony on history, leadership, and operations of Traveling Vice Lords. Jury convicts. Admissibility affirmed. Defendants do not dispute officer's qualifications as gang expert but contend that testimony's prejudicial effect outweighed its probative value, because nonexpert eyewitness testimony on operations of Traveling Vice Lords would have been perfectly comprehensible to jurors without expert assistance, and because officer's dual role as fact witness and expert may have confused jurors, leading them to credit officer's opinion testimony as brute fact. But officer's opinion testimony offered helpful background, because average juror would be unfamiliar with operations of narcotics traffickers and street gangs. Dangers may arise when law enforcement officers testify in dual capacities of fact witness and expert, but testimony in both capacities is not prohibited, and lines between fact and opinion testimony were clearly demarcated during presentation of witness's testimony to jury.

United States v. Ceballos, 302 F.3d 679 (7th Cir. 2002), cert. denied, 537 U.S. 1137 (2003). DEA agents testify as experts on drug trafficking in criminal trial. Admissibility affirmed. Agents were qualified by training and experience to opine on "code" language used in drug transactions, and such information would be helpful to jury.

United States v. Conn, 297 F.3d 548 (7th Cir. 2002), cert. denied, 538 U.S. 969 (2003). On trial for illegal firearms trafficking, defendant challenges testimony of ATF agent that firearms in defendant's possession were not collector's items. Admissibility affirmed. Agent's testimony was not lay opinion, but rather expert opinion. But agent's experience and training could ground such testimony, even though expert's qualifications, and foundations of his opinion, were established in somewhat cursory fashion.

Estate of Boncher v. Brown County, 272 F.3d 484 (7th Cir. 2001) (see the briefs). Man commits suicide in county jail. In resulting civil rights action against county, suicide's estate offers testimony from reputable criminologist that jail's five suicides within five years is unusually high number. Trial court awards summary judgment for defendant. Admissibility reversed. Criminologist's testimony "was useless and should have been excluded under the Daubert standard." Relevant question would not be number of suicides, but suicide rate, as compared with background rate among persons residing in area but not incarcerated. Also, expert should have accounted for normal variance. It would not be sound to condemn jail administrators for suicide rates within one or two standard deviations from suicide rates at other jails. Every statistical distribution has upper tail, but jails unlucky enough to be in upper tail for inmate suicides should not automatically be subject to liability.

United States v. Allen, 269 F.3d 842 (7th Cir. 2001). DEA agent testifies at criminal trial that gun found at motel was of type used in drug trafficking. Admissibility affirmed. Defendant says agent's testimony amounted to lay opinion. But agent had received education and training in narcotics trafficking, had worked as police officer for 26 years and DEA agent for 13 years, and had investigated over 200 drug cases. District court reasonably found his opinion reliable and relevant.

United States v. Havvard, 260 F.3d 597 (7th Cir 2001). District court admits fingerprint testimony in criminal trial. Admissibility affirmed. Fingerprinting passes Daubert muster. Results are objective, capable of testing, and have low error rate. Method has been subjected to "peer review" via adversary system for 100 years.

United States v. Tabb, No. 01-1163 (7th Cir. July 2, 2001). Counsel moves to withdraw in criminal appeal because unable to identify nonfrivolous basis for appeal. Motion granted. Counsel could not press nonfrivolous argument that testimony from law enforcement agents at sentencing hearing converting drug proceeds to drug weights violated standards in Daubert and Kumho Tire, because counsel did not explain to district court how testimony supposedly violated those standards. Moreover, it is questionable whether Daubert and Kumho Tire even apply at sentencing, where district judge may consider relevant information without regard to admissibility so long as it possesses some indicia of reliability.

United States v. Cruz-Velasco, 224 F.3d 654 (7th Cir. 2000), cert. denied, 540 U.S. 909 (2003). At drug trafficking trial, DEA agent testifies re nature, structure, and characteristics of drug trafficking organizations. Admissibility affirmed. Law enforcement agents can testify re attributes of drug organizations based on training and experience. Defendant says agent offered testimony specifically relating to Hispanic drug trafficking organizations, and that such testimony was improper because agent lacked sufficient experience with Hispanic organizations and also because testimony improperly injected potentially prejudicial issue of ethnicity. But agent did not opine on specifically Hispanic organizations. He merely mentioned that he had investigated Hispanic drug organizations in past.

United States v. Brumley, 217 F.3d 905 (7th Cir. 2000). District court permits DEA agent to opine in drug trial that based on agent's seven years of law enforcement experience, including roughly one hundred methamphetamine investigations, possession of ounce or more of methamphetamine is possession in dealer quantities. Admissibility affirmed. DEA agent did not purport to have knowledge of defendant's mental state, and district court limited questioning of DEA agent to areas where he was qualified to opine.

United States v. Anderson, 446 F.3d 870 (8th Cir. 2006). Law enforcement offers expert testimony for prosecution on modus operandi of illegal gambling operations. Jury convicts defendant. Admissibility affirmed. Defendant says expert was unqualified, but Fed. R. Evid. 702 does not rank formal education above practical experience. No abuse of discretion.

United States v. Cawthorn, 429 F.3d 793 (8th Cir. 2005). Prosecution expert in narcotics trial testifies that swab of defendant's hand tested positive for cocaine. Jury convicts. Admissibility affirmed in part and reversed in part. Defendant does not challenge reliability of tests but contests expert's opinion that casual contact with currency or steering wheel in automobile would not cause swab to test positive. Expert did have scientific basis for his testimony re currency. Much American currency shows traces of cocaine, yet when bank tellers are swabbed in studies, they do not test positive. Expert lacked similar basis re steering wheels. He testified that steering wheels from cars impounded in drug offenses did not test positive in study, but prosecution failed to establish that any steering wheels in study were contaminated with cocaine residues or even that cars from study were impounded in cocaine-related offenses. However, error in admitting steering-wheel testimony was harmless, because other substantial evidence supported verdict, and because trial court permitted substantial cross-examination on steering-wheel issue.

United States v. Conroy, 424 F.3d 833 (8th Cir. 2005). Defendant is charged with aggravated sexual abuse of three female victims. Prosecution offers forensic expert Kandi Smith to testify about why lab tests did not detect defendant's semen on outdoor rug allegedly used by defendant to wipe himself after one alleged incident of abuse. Jury convicts. Admissibility affirmed. Witness testified about how environmental factors and passage of time might have affected detectability of semen. Such testimony does not involve excessive speculation. "It is not an abuse of discretion to allow an expert witness to testify as to a lack of physical evidence as long as the expert's opinion does not usurp the jury's role of assessing whether the event occasioning the evidence actually occurred."

United States v. Beltran-Arce, 415 F.3d 949 (8th Cir. 2005). Prosecutors offer police sergeant to testify re modus operandi of drug dealers. Jury convicts. Admissibility affirmed. Officer had extensive training and experience, and any prejudice was outweighed by testimony's helpfulness to trier of fact.

United States v. Janis, 387 F.3d 682 (8th Cir. 2004). Defendant is charged with possession of firearm by felon. To show defendant's prior felony conviction, prosecution offers fingerprint evidence from Detective Michael Jordahl, who opines that defendant's prints match those of person by same name who was convicted of drug offense in 1987. Defendant objects that detective's opinion was not disclosed in discovery, and that defendant has not been afforded sufficient time to challenge reliability of testimony. District court offers continuance and government-funded expert for defense, but defendant declines. District court overrules objection, and jury convicts. Admissibility confirmed. Defendant did not challenge reliability at trial. District court nevertheless made reliability determination. Fingerprint evidence is generally accepted. No abuse of discretion.

United States v. Watkins, No. 03-3319 (8th Cir. Oct. 28, 2004) (unpublished), cert. denied, 126 S. Ct. 670 (2005). Defendant is convicted of weapons offense after jury hears testimony from prosecution witness Daniel Bredow re fingerprints and firearms. Admissibility affirmed. Defendant raised no objection at trial. Although witness was never formally admitted as expert witness, he was qualified based on experience as lab technician and tool-mark examiner.

United States v. Robertson, 387 F.3d 702 (8th Cir. 2004). In narcotics trial, detectives Carl Dulay and Michael Scego testify for prosecution that thirteen grams of crack cocaine found on defendant's person was quantity consistent with possession for distribution, and also that dealers typically carry guns to defend themselves against other dealers. Jury convicts. Admissibility affirmed. Among other qualifications, both detectives boasted over ten years' experience as law enforcement officers. No abuse of discretion.

United States v. Gipson, 383 F.3d 689 (8th Cir. 2004). Criminal defendant objects to prosecution's use of "Profiler Plus" and "Cofiler" multiplex kits for DNA testing, conceding validity of STR DNA profiling methodology in general but arguing that kits implement methodology in unreliable fashion. Trial court admits evidence and jury convicts. Admissibility affirmed. When application of valid scientific methodology is challenged as unreliable under Daubert, outright exclusion of evidence is warranted only if methodology was so altered by deficient application as to skew methodology itself.

United States v. Martinez-Figueroa, 363 F.3d 679 (8th Cir. 2004), vacated on other grounds, 543 U.S. 1100 (2005). Truck driver is arrested for hauling marijuana. At trial, prosecution questions arresting officer about trucker's logbook. Defendant objects when prosecutor asks, "What is the purpose of a logbook?" Trial court overrules objection and jury convicts. Admissibility affirmed. Defendant complains that officer's expert opinion was not disclosed in pretrial discovery. But this was lay opinion, not expert testimony. Officer's testimony was foundational in character and was based on his firsthand knowledge of logbook from his investigation. While explanation of logbook may have required knowledge of trucking regulations that laypersons might not possess, it was not technical in nature, and prior witness had testified to purpose of logbook without objection. District court did not abuse its discretion in admitting testimony as lay opinion under Fed. R. Evid. 701. At all events, any error was harmless because challenged testimony was cumulative.

United States v. Collins, No. 02-3353 (8th Cir. Aug. 25, 2003). Criminal defendant is convicted after jury hears fingerprint evidence. Admissibility affirmed. Defendant did not object at trial, fingerprint identification is generally accepted, and district court did not commit plain error.

United States v. Vesey, 338 F.3d 913 (8th Cir. 2003), cert. denied, 540 U.S. 1202 (2004). Charged with possession of cocaine with intent to deliver, defendant offers expert James Holt, who seeks to testify re normal conduct of illegal drug operations based on his experience as drug trafficker and government informant. District court excludes testimony and jury convicts. Exclusion reversed. Witness had relevant experience and explained how that experience shaped his opinions. District court abused discretion in focusing on expert's credibility rather than on reliability of testimony. But error was harmless in view of overwhelming evidence against defendant, and because jury likely would have found expert's credibility deficient.

United States v. Solorio-Tafolla, 324 F.3d 964 (8th Cir. 2003). Detective Michael Garnett testifies for prosecution about various aspects of narcotics trafficking. Admissibility affirmed. Because defendant raised no Daubert objection at trial, review is for plain error. Detective is 28-year law enforcement veteran, and he described how his conclusions were founded on his extensive training and experience.

United States v. Redd, 318 F.3d 778 (8th Cir.), cert. denied, 539 U.S. 921 (2003). Having pleaded guilty to mail fraud and money laundering, defendant is placed on supervised release, which is then revoked after six positive "sweat patch" results indicate cocaine usage. At revocation hearing, defendant objects to admissibility of lab results because technicians who performed tests are unavailable to testify. District court overrules objection and relies on lab results in revoking supervised release and sentencing defendant to 18 months of incarceration. Affirmed. Hearsay is permissible in revocation hearings if government's grounds for not offering live witness outweigh defendant's interest in confronting witness. Here, district court permissibly found that evidence was reliable, and that lab technicians' testimony would likely be of insufficient value to require government to incur burden and expense of producing them. Because defendant raised only hearsay and foundation objections, and no Daubert objection, Eighth Circuit's ruling should not be read as general endorsement of "sweat patch" technology.

United States v. Kehoe, 310 F.3d 579 (8th Cir. 2002), cert. denied, 538 U.S. 1048 (2003). Government offers handwriting expert Carl McClary in RICO trial. Defendant is convicted. Admissibility affirmed. District court erred in stating that objecting party bears burden of showing evidence is inadmissible, but district court later corrected that misstatement, and did not actually shift evidentiary burden to defendant. Expert was qualified, having worked in field for ten years, and he explained his methods and analysis. His testimony offered knowledge beyond jury's own, and district court did not err in finding testimony reliable.

United States v. Hernandez, 299 F.3d 984 (8th Cir. 2002), cert. denied, 537 U.S. 1134 (2003). Expert testifies for prosecution that latent print matches defendant's. Admissibility affirmed. Fingerprint evidence is admissible, subject to court oversight, and in this case, testimony did not determine outcome. District court did not abuse its discretion.

United States v. Sarabia-Martinez, 276 F.3d 447 (8th Cir. 2002). In drug trial, Special Agent John Boulger testifies for prosecution that drug dealers use walkie-talkies in counter surveillance to determine whether they are being watched. Admissibility affirmed. District courts have discretion to admit expert testimony from law enforcement officers re modus operandi of persons in drug trade.

United States v. Evans, 272 F.3d 1069 (8th Cir. 2001), cert. denied, 535 U.S. 1029 (2002). In Mann Act prosecution, Minneapolis police officer testifies re operation of prostitution rings, including recruitment of prostitutes, relationship between pimps and prostitutes, and jargon used in such rings. Admissibility affirmed. District court was not required to convene Daubert hearing before qualifying police officer as expert on prostitution rings and properly relied on policeman's education, training, and experience.

Kinder v. Bowersox, 272 F.3d 532 (8th Cir. 2001). Rape/murder defendant convicted in state court files habeas petition challenging testimony from prosecution's DNA expert, because expert allegedly altered visual depiction of test results by erasing band that would have ruled out defendant, and also because of other alleged methodological failings. Denial of habeas affirmed. Trial court in criminal proceeding ruled consistently with Daubert in holding that issue of alleged alteration of evidence was for jury. Meanwhile, Daubert does not bind state courts anyway.

United States v. Ross, 263 F.3d 844 (8th Cir. 2001). At bank robbery trial, FBI forensic examiner opines that footprints match defendant's boots and tire imprints match defendant's car. Admissibility affirmed. District court held Daubert hearing and FBI witness specialized in this type of evidence. Moreover, Eighth Circuit has upheld footprint evidence before.

United States v. Peoples, 250 F.3d 630 (8th Cir. 2001), cert. dism'd, 543 U.S. 1042 (2005). At trial of two men charged with aiding and abetting murder of federal witness, FBI agent testifies re meaning of words and phrases used by defendants in recorded conversations, based on information acquired by agent in subsequent investigation. District court expresses uncertainty about admissibility of testimony as lay opinion under Fed. R. Evid. 701 and permits testimony only as "snippets of early argument from the witness stand," not as evidence. Admissibility reversed. Prosecution did not seek to offer agent as expert under Fed. R. Evid. 702 and therefore may not invoke Rule 702 on appeal. As for admissibility of testimony as lay opinion under Rule 701, agent did not participate in conversations, observe conversations as they occurred, or possess personal knowledge of facts being related in conversation. Rather, agent's interpretations were based on after-the-fact investigation. Law enforcement officers are often qualified to opine on meaning of slang, street language, and language of drug trade, but what is essentially expert testimony may not be admitted under guise of lay opinion. Such substitution subverts criminal discovery provisions and reliability requirements under Daubert.

United States v. Calderin-Rodriguez, 244 F.3d 977 (8th Cir. 2001). Criminal defendant is convicted based partly on digitally enhanced audio tape. Admissibility affirmed. Eighth Circuit has previously ruled that tape recordings are admissible without expert testimony on how tape recorders work. No basis exists for distinction as to use of computer program for digital enhancement, which simply improves quality of recording. If enhancement technology were incorporated as part of tape recorder itself, resulting tape would be admissible. No reason to vary result where separate enhancement device is used. Necessary foundation was laid by operator's testimony that he had used same computer enhancement software on previous occasions.

Young v. City of St. Charles, 244 F.3d 623 (8th Cir. 2001). Police officer discharged for submitting altered documents brings § 1983 action alleging various violations of procedural and substantive due process, including administrative appeal board's consideration of handwriting expert's testimony, which police officer alleged did not satisfy Daubert. Dismissal affirmed. City afforded constitutionally adequate hearing and did not abridge any substantive due process rights via any conduct rising to requisite level of irrationality or outrageousness.

United States v. Jordan, 236 F.3d 953 (8th Cir.), cert. denied, 534 U.S. 897 (2001). Police officer is permitted to testify to modus operandi of drug dealers in criminal trial. Admissibility affirmed. Reliability of officer's testimony was grounded in her extensive experience and training. Defendant says officer's testimony contradicted DEA literature, but that would not necessarily make her testimony inadmissible. In any event, DEA literature to which defendant adverts was not part of record in district court and may not be considered for first time on appeal.

United States v. Jolivet, 224 F.3d 902 (8th Cir. 2000). Prosecution's handwriting analyst testifies in mail fraud trial that handwriting on documents was probably defendant's. Admissibility affirmed. Because no objection to testimony was raised at trial, review is for plain error. Because prosecution's expert was particularly experienced and well trained in handwriting analysis, district court did not abuse discretion in finding testimony reliable.

United States v. Bahena, 223 F.3d 797 (8th Cir. 2000), cert. denied, 531 U.S. 1181 (2001). In drug conspiracy trial, defendant offers voice spectography testimony to show that voice on several wiretapped phone conversations was not his. District court excludes testimony after holding Daubert hearing. Exclusion affirmed. Defendant argues that Daubert should not apply to criminal proceedings, but it does. Defendant also argues that district court abused its discretion in not recognizing defendant's Sixth Amendment right to offer witnesses in defense, but defendant did not raise this constitutional argument in district court. In any event, under Scheffer, it is not violative of Sixth Amendment to exclude testimony for legitimate evidentiary reasons. As for reliability of testimony, Eighth Circuit might not reach same conclusion as district court, and is not holding that voice spectography is never admissible. But defendant's expert had no formal training, seemed shaky on technical questions, belonged to no professional organizations, subscribed to no professional journals, admitted that his methods did not conform to recognized standards, and committed methodological faux pas in not using original tapes. District court did not abuse discretion in concluding that witness was unqualified.

United States v. Jawara, No. 05-30266 (9th Cir. Sept. 15, 2006). Prosecution in document fraud trial offers testimony from Carolyn Bayer-Broring, forensic document examiner for Department of Homeland Security. Jury convicts. Admissibility affirmed. Defendant correctly complains that district court made no explicit reliability findings. But error was harmless in light of witness's extensive academic qualifications and experience.

United States v. Decoud, No. 04-50318 (9th Cir. Aug. 2, 2006). Prosecution's expert on drug jargon testifies to meaning of expressions he has not heard before, such as "diznerty," "woop-wop," and "weezy." Jury convicts. Admissibility affirmed. Witness explained how he was able to interpret unfamiliar expressions based on context and his experience.

United States v. Latysheva, No. 03-50004 (9th Cir. Jan. 10, 2006) (unpublished). Prosecution offers testimony from federal agent Mark Tyson on money laundering. Jury convicts. Admissibility affirmed. Not all Daubert factors necessarily apply to testimony like this. No abuse of discretion.

Estate of Flores v. Bryan, No. 03-57156 (9th Cir. Nov. 1, 2005) (unpublished). In suit against police alleging they used excessive force, plaintiff objects when defendants offer fiber comparison testimony from criminalist Jennifer Shen. District court overrules objection and jury rules for defendants. Admissibility affirmed. District court permissibly concluded that criminalist's failure to exclude alternative sources of fibers did not mandate exclusion of her testimony.

United States v. Chong, No. 03-10222 (9th Cir. Aug. 18, 2005) (unpublished). In extortion trial, prosecution offers generic testimony from police officer re structure of local Asian organized crime groups. Jury convicts. Admissibility affirmed. Officer's testimony was helpful to trier of fact. Trial court barred officer from testifying to participation in gang activity by specific individuals.

United States v. Barrera-Medina, No. 03-10455 (9th Cir. July 7, 2005) (unpublished). Defendants are charged with various offenses relating primarily to conspiracy to purchase one million pseudoephedrine pills to manufacture methamphetamine. At trial, prosecution offers testimony by law enforcement officer on use of weapons and counter-surveillance by drug traffickers. District court admits testimony and jury convicts. Exclusion reversed. District court considered defendants' objection under Fed. R. Evid. 403 but abdicated its gatekeeping function, and thereby erred, in failing to rule on defendants' similar but distinct reliability objection under Fed. R. Evid. 702. However, error was harmless.

United States v. Butler, No. 04-30110 (9th Cir. June 7, 2005) (unpublished). In narcotics trial, prosecution offers testimony from detective on use of cash, scales, pay/owe ledgers, plastic bags, and firearms in connection with methamphetamine distribution activities. Trial court admits testimony and jury convicts. Admissibility affirmed. No abuse of discretion.

United States v. Sanchez-Birruetta, No. 04-30150 (9th Cir. Mar. 18, 2005) (unpublished). In criminal prosecution, government relies on expert testimony from fingerprint identification specialist Thomas Liszkiewicz. Jury convicts. Admissibility affirmed. Defendant says FBI's solicitation of new research on reliability of fingerprint identification establishes that existing research does not validate its reliability. But validity of existing studies on which expert relied was not called into question by FBI solicitation. Moreover, expert's comparison was between two sets of rolled prints, and such comparisons are more reliable than comparisons involving partial prints.

United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004). Defendant is charged with possession of firearm by felon. Prosecution offers detective's expert testimony on gangs to rebut exculpatory evidence from defense witness. Trial court admits testimony, and jury convicts. Admissibility affirmed. District court permissibly held that testimony was neither unreliable nor more prejudicial than probative. Similar testimony has previously been upheld against similar objections in prior cases. District court legitimately weighed detective's extensive experience with street gangs. No abuse of discretion.

United States v. Akins, No. 03-10053 (9th Cir. June 22, 2004) (unpublished). Criminal defendant unsuccessfully challenges prosecution's fingerprint identification testimony. Jury convicts. Affirmed. Any error was harmless because other evidence amply supported conviction.

United States v. Green, No. 03-50080 (9th Cir. May 11, 2004) (unpublished). Defendant is convicted on drug charges after government agent testifies as expert on meaning of code words in drug trade. Admissibility affirmed. Agent testified to his qualifications and methodology, and jury was left to decide on criminal intent.

United States v. Prime, 363 F.3d 1028 (9th Cir. 2004), amended, 431 F.3d 1147 (9th Cir. 2005). In prosecution for wire fraud and various counterfeiting offenses, government offers testimony from Kathleen Storer, forensic document examiner with Secret Service, who opines that defendant was author of over 38 incriminating exhibits. Admissibility affirmed. Ample peer-reviewed literature establishes reliability of handwriting analysis. Technique has low rate of error, follows emerging standards, and is generally accepted in forensic community.

United States v. McCoy, No. 01-10539 (9th Cir. Jan. 8, 2004) (unpublished), cert. denied, 125 S. Ct. 137 (2004). In drug conspiracy trial, prosecution offers testimony from expert who translates numeric codes from pagers to indicate cocaine prices and quantities, identification codes, times, and phone numbers. Jury convicts. Admissibility affirmed. No abuse of discretion. Indeed, given voluminous numerical evidence at heart of government's case, it is difficult to see how trial could have proceeded without expert's guidance.

United States v. Castellon, No. 02-50406 (9th Cir. Oct. 31, 2003) (unpublished), cert. denied, 124 S. Ct. 1621 (2004). Narcotics defendant is convicted after law enforcement agent opines re defendant's leadership role in organization and quantity of drugs dealt. Admissibility affirmed. No clear error.

United States v. Rojas-Torres, No. 02-30338 (9th Cir. June 9, 2003) (unpublished), cert. denied, 124 S. Ct. 347 (2003). Prosecution offers fingerprint evidence against criminal defendant, and jury convicts. Admissibility affirmed. Defendant argues that fingerprint evidence does not satisfy Daubert's requirements for scientific reliability. District court conducted Daubert hearing and weighed relevant Daubert factors. No abuse of discretion.

United States v. Hornbeck, No. 02-50146 (9th Cir. Apr. 25, 2003) (unpublished). After conducting hearing on bank robbery defendant's motion in limine, district court admits prosecution testimony re bloodhound alert, and jury convicts. Admissibility affirmed. Evidence was probative because it connected defendant's car with material from crime scene, and K-9 handler had worked in field for eight years.

United States v. Seschillie, 310 F.3d 1208 (9th Cir. 2002), cert. denied, 538 U.S. 953 (2003). Charged with shooting and injuring several persons, defendant contends he did not intend to fire weapon, but that weapon discharged four times by accident during struggles over control of gun. To support his theory, defendant offers testimony from criminologist Ray Gieszl. District court permits Gieszl to testify on general scenarios that can lead to accidental discharge of weapons, but not to comment on facts of case or offer ultimate opinion on whether defendant intended to fire. Jury convicts. Exclusion affirmed. No abuse of discretion. Jury could apply its own common sense to determine whether weapon discharged accidentally under any of expert's scenarios.

United States v. Navarro-Fletes, No. 01-30247 (9th Cir. Oct. 24, 2002) (unpublished). District court admits fingerprint testimony in criminal case over defendant's objections. Admissibility affirmed. District court properly considered Daubert factors and permissibly determined that fingerprinting passes muster. Nor did lower court err in finding fingerprint expert qualified. She had twelve years' experience identifying thousands of prints, as well as suitable training.

United States v. Oliver, No. 01-10329 (9th Cir. Aug. 22, 2002) (unpublished). At trial of man for illegal possession of firearm by felon, prosecution calls law enforcement officer to opine that materials in defendant's auto were consistent with poaching. Admissibility affirmed. Officer's experience as investigator of fish and game violations qualified him to render expert testimony on practices of poachers. Defendant also says evidence was irrelevant and prejudicial. It is true that defendant was not charged with poaching, and that poaching was not required element of prosecution's proof. But officer's testimony, in combination with other evidence, did assist trier of fact in determining whether weapon was brought by defendant's companion for companion's use alone, or for their joint use.

United States v. Quezada, No. 00-50053 (9th Cir. July 31, 2002) (unpublished), cert. denied, 537 U.S. 1238 (2003). Prosecution offers testimony re drug-trafficking organizations. Admissibility reversed. On appeal, defendant raises various objections to agent's testimony. District court should have excluded testimony as irrelevant. But defendant did not object below, and district court did not commit plain error, because testimony did not affect defendant's substantial rights, so conviction is affirmed.

United States v. Hanna, 293 F.3d 1080 (9th Cir. 2002). Man disseminates documents suggesting in various ways that President Clinton should be killed. Criminal charges ensue. At trial, Secret Service Agent Jim Deal testifies as expert, over defendant's objection, and opines that documents would be construed by reasonable recipients as containing threats. Other Secret Service Agents testify to similar effect. Jury convicts. Admissibility reversed. Agents were no more qualified than average juror to gauge how reasonable recipients would interpret documents. If anything, agents were less qualified, because professionally sensitized to "threats" that typical recipient might not reasonably perceive.

United States v. Johnson, No. 00-30359 (9th Cir. June 14, 2002) (unpublished), cert. denied, 537 U.S. 1142 (2003). District court admits expert testimony from prosecution on relationship between pimps and prostitutes. Admissibility affirmed. Other decisions have upheld similar evidence, and district court did not abuse discretion. Panel need not reach question whether district court erred in not conducting Daubert hearing, because defendant did not preserve issue for appeal.

United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002), amended, No. 99-10092 (9th Cir. Sept. 16, 2002) (unpublished), cert. denied, 537 U.S. 1223 (2003). At narcotics conspiracy trial, FBI agent John Broderick testifies to meaning of jargon and slang terms used in alleged conspirators' intercepted phone conversations. Defendants do not object to testimony regarding words commonly used in drug trade, but do challenge reliability of agent's testimony re words that agent encountered for first time in this case. District court admits testimony and jury convicts. Admissibility reversed. Agent could not rely on general familiarity with street terms commonly used in drug trade to opine on meaning of terms agent had never encountered before. It is conceivable that reliability of such testimony could be defended, but it was not established here. However, error was harmless. [N.B.: The published opinion in this matter was withdrawn on the same date as the unpublished amended opinion was issued, and the unpublished opinion appears to conclude that the trial court did not err in admitting the testimony.]

United States v. Ambriz-Vasquez, No. 01-10144 (9th Cir. May 2, 2002) (unpublished). INS agent testifies to twelve-point fingerprint match. Admissibility affirmed. Defendant objects to district court's failure to hold Daubert hearing on (1) reliability of fingerprinting techniques and (2) agent's qualifications. Defendant's first objection falsely assumes that district courts may not take judicial notice of reliability of fingerprint analysis. It would be unduly onerous to require Daubert hearings every time defendants object to fingerprinting, and Ninth Circuit has previously held that district courts do not commit clear error in admitting fingerprint evidence without first conducting Daubert hearings. As for qualifications, agent had extensive coursework and experience. Defendant had ample opportunity to impeach agent's testimony at trial.

United States v. Pineda-Torres, 287 F.3d 860 (9th Cir.), cert. denied, 537 U.S. 1066 (2002). Man is arrested at Mexican border when marijuana is found in secret compartments in his vehicle. He is charged with possession with intent to distribute, but not with conspiracy. At trial, district court admits testimony from customs agent Robert Villars re modus operandi of drug trafficking organizations. Jury convicts. Admissibility reversed. Expert evidence on practices of drug trafficking organizations is inadmissible, because irrelevant and prejudicial, when conspiracy is not charged. Prosecution says that evidence was offered to rebut defendant's position concerning lack of fingerprint evidence, via expert testimony that drivers in smuggling operations do not generally load their own vehicles. But it was not defendant who "opened the door" to fingerprint testimony. Defendant cross-examined prosecution's witnesses on this subject only after advised by district court that prosecution's testimony would be admitted to explain lack of fingerprints, and only after defendant was instructed to "plan accordingly."

United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.), cert. denied, 537 U.S. 1038 (2002). Prosecution offers narcotics agent to testify to value of marijuana in defendant's possession. District court admits testimony after conducting Daubert hearing in jury's presence. Admissibility affirmed. Defendant argues that agent's methods were not testable and could not be reviewed for error rates, and that resulting estimates were not generally accepted. But test for admissibility under Daubert and Kumho Tire is flexible, and narcotics agent could testify based on his extensive experience. District court did not err in refusing to conduct Daubert hearing outside presence of jury.

United States v. Martinez-Garduno, No. 01-10343 (9th Cir. Mar. 26, 2002) (unpublished), cert. denied, 537 U.S. 890 (2002). Deportee prosecuted for reentry challenges government's use of fingerprint evidence to prove he is indeed same person who was previously deported. Admissibility affirmed. Regardless of merits of fingerprint identification under Daubert, any error was harmless, because evidence overwhelmingly supported guilt.

United States v. Hernandez-Silva, No. 00-10641 (9th Cir. Mar. 12, 2002) (unpublished). Man is found hiding in Arizona desert near burlap sacks containing 64 pounds of marijuana, and burlap fibers are found on his clothing. On trial for possession of marijuana with intent to distribute, man objects to prosecution's expert testimony on modus operandi of drug traffickers. Admissibility affirmed. Expert testimony that persons commonly transport drugs from Mexico in burlap sacks, and guard those sacks until they are picked up and passed further down the distribution chain, was relevant to show conspiracy, and was not within common knowledge of average juror.

United States v. Williams, No. 01-30046 (9th Cir. Jan. 28, 2002) (unpublished). District court refuses to entertain criminal defendant's Daubert challenge to fingerprint evidence. Conviction affirmed (because admitting evidence was harmless error). Defendant contends that although district court was not necessarily required to conduct Daubert hearing on defendant's objections to fingerprint evidence, district court erred in not even ruling on reliability of evidence. Defendant is correct, but error was harmless.

United States v. Giorgies, No. 01-10047 (9th Cir. Jan. 22, 2002) (unpublished), cert. denied, 535 U.S. 1087 (2002). Prosecution offers handwriting expert in prosecution for fraudulent passing of checks. Conviction affirmed. Even if district court erred in not conducting Daubert inquiry, testimony from handwriting expert did not play significant role. Jury was given handwriting samples allowing them to make independent assessment, and any error was harmless in light of overwhelming evidence against defendant.

United States v. Johnson, No. 00-50479 (9th Cir. Jan. 10, 2002) (unpublished), cert. denied, 537 U.S. 1241 (2003). Defendant charged with smuggling aliens challenges government expert who testifies that defendant's handwriting from known samples and exemplar matches handwriting on fraudulently submitted forms. Admissibility affirmed. Expert was qualified, testimony was relevant, and Ninth Circuit has previously held that science of handwriting analysis may assist jury.

United States v. Coleman, No. 99-50018 (9th Cir. Aug. 7, 2001) (unpublished), cert. denied, 534 U.S. 1147 (2002). At drug conspiracy trial, FBI agent testifies for prosecution re meaning of code words, without being qualified as expert. Admissibility affirmed. Insofar as agent's testimony concerned code words specific to conspiracy, it was admissible lay opinion. Insofar as it involved code words in more general usage, it should have been offered as expert opinion, because agent's opinions derived from knowledge acquired outside his investigation of this case. However, any error was harmless because agent would have satisfied test for qualification as expert based on his extensive training and experience.

United States v. Och, No. 00-10351 (9th Cir. July 31, 2001) (unpublished). Bank robbery defendant objects to testimony from handwriting examiner, contending that witness is unqualified and that handwriting analysis is methodologically unreliable. District court admits testimony and jury convicts. Affirmed. Admissibility of testimony need not be reached because any error was harmless.

United States v. Murillo, 255 F.3d 1169 (9th Cir. 2001), cert. denied, 535 U.S. 948 (2002). DEA agent testifies at criminal trial about value of drugs found in defendant's rental car, number of doses that such amount constituted, and modus operandi of drug traffickers. Admissibility affirmed. Standard of review under Kumho Tire is deferential, and given extensive voir dire to establish agent's qualifications, district court did not abuse discretion in admitting testimony.

United States v. Franco, No. 00-10090 (9th Cir. June 4, 2001) (unpublished). In criminal prosecution for illegal transport of aliens, law enforcement agent testifies as expert, on subjects not specified in Ninth Circuit's opinion. Admissibility affirmed. Agent had extensive knowledge and experience, more than satisfying Kumho Tire's reliability requirement. Agent was permitted to testify to ultimate facts, so long as he did not testify to defendant's state of mind.

United States v. Mendoza-Paz, No. 00-50029 (9th Cir. Apr. 23, 2001) (unpublished), cert. denied, 123 S. Ct. 573 (2002). Defendant is convicted of possessing and importing marijuana based in part on testimony from narcotics agent and chemist. Admissibility affirmed. Defendant argues that testimony from agent and chemist was not sufficiently disclosed under Fed. R. Crim. P. 16(a)(1)(E), but defendant has not shown how any prosecution failure to provide timely and complete summaries of expert opinions and qualifications prejudiced defendant's substantial rights. Defendant also contends that agent's testimony should have been excluded because agent's estimates were not subject to empirical testing, could not be reviewed for error rates, and had not been accepted in any relevant scientific community. But trial courts may rely on knowledge and experience of narcotics agents rather than methodology or theory behind their testimony.

United States v. Charlesworth, No. 00-50117 (9th Cir. Feb. 26, 2001) (unpublished), cert. denied, 532 U.S. 1072 (2001). Defendant pleads guilty to manufacturing currency but appeals sentence, challenging district court's reliance on Secret Service report concerning amount of currency seized. Reliance affirmed. In sentencing, district court may consider material not admissible in evidence at trial if it possesses sufficient indicia of reliability. Secret Service report met this criterion and was independently corroborated.

United States v. Moreno, No. 00-10031 (9th Cir. Dec. 4, 2000) (unpublished). Customs inspector testifies at drug trial regarding age of marijuana found in gas tank of defendant's Ford Bronco, and jury convicts. Admissibility affirmed. Inspector examined marijuana from gas tank and compared it with marijuana she had seen in other cases. Her testimony was thus founded on her own rational perceptions, and was admissible as lay opinion.

United States v. Salazar-Munoz, No. 99-10566 (9th Cir. Oct. 16, 2000) (unpublished). Government agent testifies for prosecution re methods and tactics used by smugglers to transport illegal aliens into United States. Jury convicts defendant of that offense. Admissibility affirmed. Purpose of agent's testimony was to educate jury about operating procedures of undocumented alien smuggling schemes, and particularly about use of commercial vehicles such as taxis and buses to convey appearance of legitimacy. Agent did not tie his testimony to defendant's own behavior, and testimony was more probative than prejudicial.

United States v. Recio, 258 F.3d 1069 (9th Cir. 2000), rev'd on other grounds, 537 U.S. 270 (2003). In drug smuggling conspiracy case, DEA agent Anthony Hinton testifies for prosecution, opining re attributes of large and complex drug operations. Admissibility affirmed. Testimony satisfied Fed. R. Evid. 702.

United States v. Lua, No. 99-10497 (9th Cir. Aug. 31, 2000) (unpublished), cert. denied, 531 U.S. 1101 (2001). Prosecution calls DEA agent to testify that drug traffickers do not typically entrust large quantities of drugs to unwitting transporters. Admissibility affirmed. Given agent's broad experience, district court did not abuse discretion in admitting testimony. Nor did testimony run afoul of rule against expert evidence on mens rea, because testimony is barred under that rule only if it necessarily follows from testimony that defendant did or did not possess requisite mental state, and DEA agent testified only regarding what was typical.

United States v. Alatorre, 222 F.3d 1098 (9th Cir. 2000). In criminal trial for marijuana possession, government offers customs agent to testify on issues of marijuana value, distributable quantity, and structure and organization of drug organizations. Defendant requests separate pretrial Daubert hearing, but district court permits only voir dire in presence of jury. Admissibility affirmed. No separate pretrial hearing is necessarily required (citing Kumho Tire). [N.B.: Other related evidentiary issues are treated in contemporaneous unpublished opinion dated August 16, 2000, docket number 99-50587.]

United States v. Quezada-Daza, No. 99-30126 (9th Cir. July 21, 2000) (unpublished). Prosecution fails to disclose during pretrial discovery that it will offer expert testimony from DEA agent. Admissibility affirmed. District court afforded remedy to defendants in form of extra time to prepare for cross-examination, and defendants neither filed any Daubert motion in district court nor requested any opportunity to do so.

United States v. Gonzalez, No. 99-50522 (9th Cir. July 5, 2000) (unpublished). At defendant's trial for importation of marijuana and possession with intent to distribute, government offers expert opinion from customs agent, who testifies that costs rise when drugs cross border into United States. Jury convicts. Admissibility affirmed. Purpose of testimony was to establish value of marijuana, so that jury might frame inference regarding defendant's knowledge and intent, and not to show that defendant fit any particular drug profile. No abuse of discretion.

United States v. Wright, 215 F.3d 1020 (9th Cir.), cert. denied, 531 U.S. 969 (2000). One of bank robbers' weapons accidentally discharges during robbery, shooting robber in foot. At trial, defendant objects to expert testimony matching DNA from his blood sample to DNA from blood at scene of robbery. Admissibility affirmed. Previous Ninth Circuit decisions have held DNA tests admissible under Daubert. Defendant asks that those rulings be revisited, but relies on California Supreme Court decision in which lab personnel failed to follow proper scientific procedures. No such failure is alleged here.

United States v. Boyd, No. 99-50091 (9th Cir. June 5, 2000) (unpublished). At defendant's trial for possession of marijuana with intent to distribute, law enforcement officer testifies re modus operandi of drug smuggling operations. Admissibility affirmed. Defendant complains that district court did not make appropriate findings re Daubert inquiry, but nothing requires trial courts to document every decision to admit expert testimony. This testimony was not complex.

United States v. Inda-Mendoza, No. 99-50151 (9th Cir. Apr. 19, 2000) (unpublished). In prosecution for transportation of undocumented aliens, defendant claims he had no idea that his truck trailer contained human cargo. Government offers testimony from two law enforcement agents that alien smuggling operations are organized enterprises, often charging fees of $800 to $1200 per alien, that drivers are ordinarily highly paid, and that even novice driver would have known that truck was not empty. Admissibility affirmed. No Daubert objection was raised at trial, and so review is for plain error only. This was garden variety testimony about organization of criminal enterprises to establish modus operandi, and it was admissible. Defendant also complains, in defendant's opening brief on appeal, that one agent was allowed to testify without foundation, but record shows that district court raised foundation issue sua sponte, and on reply, defendant admits that defendant's counsel then explicitly waived foundation objection for strategic reasons. "The question remains: why was it argued in the opening brief? Counsel should be more careful."

United States v. Guyer, No. 99-10032 (9th Cir. Apr. 18, 2000) (unpublished). Charged with bribery, defendant offers expert in "covert conversation analysis" to address government's wiretap evidence. District court excludes testimony and jury convicts. Exclusion affirmed. Record affords ample grounds for doubt that "covert conversation analysis" is beyond understanding of average juror, and also could support district court conclusion that witness is not expert in that subject. Fed. R. Evid. 704(b) supplies alternative basis for exclusion insofar as witness's testimony related to defendant's state of mind.

United States v. Chang, 207 F.3d 1169 (9th Cir.), cert. denied, 531 U.S. 860 (2000). Charged with securing loan through counterfeit Japanese financial instrument, defendant offers Edmond Lausier, assistant professor of clinical marketing at USC, to testify that instrument was authentic. District court excludes testimony, and jury convicts. Exclusion affirmed. District court permissibly concluded that expert was qualified only to testify that similar instruments are in fact sometimes legitimately issued, and lacked qualifications to identify counterfeit securities.

United States v. Hankey, 203 F.3d 1160 (9th Cir.), cert. denied, 530 U.S. 1268 (2000). Gang member is tried for possession and distribution of PCP. To impeach fellow gang member who gives exculpatory testimony, prosecution offers police expert on gangs who testifies that gangs have code of silence and that gang members who testify against other gang members are commonly subject to violent retribution. Admissibility affirmed. Defendant apparently believes that factors listed in Daubert as bearing on admissibility of scientific testimony should be applied mechanically to all expert testimony, but Supreme Court has emphasized flexibility of Daubert/Kumho inquiry in different contexts. Police officer had specialized training in gangs and extensive experience therewith, and based his opinions on information provided to him by gang members.

United States v. Malveaux, No. 98-50669 (9th Cir. Feb. 2, 2000) (unpublished). Bank robbery defendant argues on pro se appeal that district court's decision admitting prosecution's fingerprint evidence violated Frye. Admissibility affirmed. It is now Daubert, not Frye, that controls admissibility of expert evidence, and record reflects that government expert's fingerprint testimony was appropriately based on scientific techniques.

United States v. Hartman, No. 05-1077 (10th Cir. Sept. 7, 2006) (unpublished). Over narcotics defendant's objections, detective testifies re modus operandi of drug dealers. Jury convicts. Admissibility affirmed. Defendant says detective was unqualified. But he is trained narcotics agent with 19 years of experience in over 1000 narcotics investigations, and his testimony was helpful to trier of fact. Detective did not offer impermissible expert testimony on mens rea.

United States v. Ellis, No. 05-7136 (10th Cir. Aug. 22, 2006). In narcotics trial, prosecution calls two forensic experts from Oklahoma Bureau of Investigation to testify re quantity of methamphetamine found in defendant's possession: John Giles, who used gas chromatography mass spectroscopy ("GCMS"), and Marty Wilson, who used high performance liquid chromatography ("HPLC"). Both agents say they tested only samples, taken from powder they produced by grinding crystalline drug material seized from defendant. District court overrules Daubert objection and admits their testimony. Jury convicts. Admissibility reversed. District court did not make any specific reliability findings, and record does not establish any reliable basis for experts' contention that samples taken from powder would be representative. But error was harmless, in light of other testimony re quantities of meth sold by defendant.

United States v. Mehdipour, No. 05-6376 (10th Cir. July 11, 2006) (unpublished). District court denies habeas petition. Affirmed. Petitioner predicates ineffective assistance claim on counsel's failure, in underlying proceedings, to raise Daubert challenge to testimony from prosecution witness identifying voice on audiotape. But petitioner failed to failed to raise this issue in district court.

United States v. Sutherland, No. 05-6266 (10th Cir. Aug. 11, 2006) (unpublished). Defendant is charged with interstate transportation of minors for purposes of prostitution. At trial, prosecution offers testimony from police sergeant on pimps' relationships with prostitutes, from recruitment onward. Jury convicts. Admissibility affirmed. District court reviewed sergeant's qualifications, and testimony was potentially helpful to trier of fact.

United States v. Walker, No. 05-5127 (10th Cir. May 3, 2006) (unpublished). In narcotics trial, prosecution offers expert testimony from law enforcement officer on modus operandi of drug dealers. Jury convicts. Admissibility affirmed. Defendant did not object at trial and so review is for plain error. None appears.

United States v. Sanchez-Garcia, No. 04-3437 (10th Cir. Oct. 20, 2005) (unpublished). Cops find drugs in car. Trooper testifies quantities are consistent with distribution. Jury convicts. Admissibility affirmed. Law enforcement officers may testify on this point based on their experience.

United States v. Lauder, 409 F.3d 1254 (10th Cir. 2005). Defendant in narcotics trial objects, invoking Daubert, when prosecution asks its fingerprint expert to opine on match between latent print and defendant's prints. District court admits testimony and jury convicts. Admissibility affirmed. Defendant's objection went not to expert's qualifications or methodology, but rather to "live-skin" (a.k.a. "LiveScan") technology whereby defendant's prints were taken. Daubert is irrelevant to this issue, which involves underlying data on which expert relied and accuracy of technology used to collect it.

United States v. Arras, 373 F.3d 1071 (10th Cir. 2004). Customs agent testifies for prosecution at narcotics trial. Jury convicts. Admissibility affirmed. Defendants complain that prosecution neither offered customs officer as expert nor qualified him as such before jury. But defendants raised no such objection at trial, and trial court is not required to evaluate expert qualifications in jury's presence.

United States v. Mundy, No. 03-3216 (10th Cir. May 12, 2004) (unpublished). Detective testifies that possession of narcotics for sale rather than personal use may be gauged by packaging, form, and quantity of drugs, as well as by possession of drug paraphernalia, cash, pay/owe sheets, and tools to cut and weigh drugs. Jury convicts. Admissibility affirmed. Testimony was helpful to trier of fact and did not constitute impermissible expert testimony on intent.

United States v. Ward, No. 03-6005 (10th Cir. Apr. 29, 2004) (unpublished), vacated on other grounds, 543 U.S. 1103 (2005). Criminal defendants object to admission of expert fingerprint evidence at trial. District court overrules objection and jury convicts. Admissibility affirmed. Defendant here raises same argument that Tenth Circuit rejected when it was raised by defendant in United States v. Turner, 285 F.3d 909 (10th Cir.), cert. denied, 537 U.S. 895 (2002) [infra]. Any error in admitting fingerprint testimony was harmless in light of overwhelming evidence against defendant.

United States v. Berrelleza, No. 03-5000 (10th Cir. Mar. 5, 2004) (unpublished). Drug detection dog alerts to vehicle during routine traffic stop. Relying on alert for probable cause, police search vehicle and discover cocaine and methamphetamine. On motion to suppress, defendant requests Daubert hearing on canine alert. District court declines to convene hearing, and motion to suppress fails. Defendant pleads guilty, reserving right to appeal evidentiary issue. Affirmed. Other courts to consider issue have held that Daubert hearings are wrong procedural tool with which to challenge reliability of drug detection dogs (citing United States v. Outlaw, 134 F. Supp. 2d 807 (W.D. Tex. 2001)).

Miller v. Mullin, 354 F.3d 1288 (10th Cir. 2004), cert. denied, 543 U.S. 1154 (2005). Habeas petitioner alleges ineffective assistance in state murder trial because counsel did not demand Daubert hearing for prosecution's forensic chemist regarding her testimony concerning blood sample found on sandal. Denial of habeas affirmed. Challenges to chemist's methods and techniques went to credibility and weight, which were properly left to jury after cross-examination.

United States v. Bhatti, No. 03-8023 (10th Cir. Jan. 16, 2004) (unpublished). In prosecution for possession of marijuana with intent to distribute, Wyoming special agent Kevin Haller opines that 90 kilograms of marijuana found in defendants' truck would have street value of $1.2 million. Jury convicts. Admissibility affirmed. Tenth Circuit has previously held that similar evidence was relevant and not unduly prejudicial. Defendants say that does not dispose of their Daubert objection, but agent had extensive experience and testified to basis of his opinions.

United States v. Lonedog, No. 02-8065 (10th Cir. June 12, 2003) (unpublished), cert. denied, 540 U.S. 975 (2003). In drug trial, prosecution offers testimony re screening tests in which defendant tested positive for THC. Jury convicts. Admissibility affirmed. Defendant complains that district court failed to conduct preliminary hearing on Daubert issues, and also complains that screening tests are unreliable and therefore are not in general testimonial use. Failure to hold preliminary hearing did not constitute abuse of discretion, because judge conducted "what can be viewed as a Daubert test" at trial, via testimony from prosecution witnesses Dr. Ella Loring (senior chemist and forensic scientist at Wyoming state crime laboratory) and Hollie A. Childers (lab manager at hospital where screening test was performed). As for merits of Daubert objection, Dr. Loring testified that "it is a reliable screening test . . . very reliable."

United States v. Cavely, 318 F.3d 987 (10th Cir.), cert. denied, 539 U.S. 960 (2003). At trial for conspiracy to manufacture methamphetamine, district court admits testimony from government's forensic chemist, John Paulson, re amount of meth that was, or could have been, produced by four meth labs at issue. Jury convicts. Admissibility affirmed. Expert explained his methodology at Daubert hearing. His technique, which relies on basic chemistry and familiarity with meth production to estimate ultimate outputs based on quantity of precursor ingredients on hand, enjoys support in published literature, is generally accepted in field, and has been used frequently in connection with sentencing issues.

United States v. Rhiger, 315 F.3d 1283 (10th Cir.), cert. denied, 540 U.S. 836 (2003). At trial of defendant for manufacturing and possessing methamphetamine with intent to distribute, district court accepts government agent as expert on methamphetamine production and investigation of illegal laboratories. In addition to these subjects, agent, who was also arresting officer, testifies that he smelled methamphetamine on defendant's clothing at time of arrest. Jury convicts. Affirmed. Defendant appears to argue that if agent's testimony re drug odor was expert opinion, it should have been vetted in Daubert hearing, and if it was lay opinion, jury should have been so instructed. But defendant did not object to testimony at trial, and so its admission is reviewed for plain error. No plain error appears, because even absent disputed testimony, jury would have had ample basis to convict, and defendant cannot show prejudice.

United States v. Carter, No. 01-6241 (10th Cir. July 19, 2002) (unpublished), cert. denied, 537 U.S. 1061 (2002). Federal agent Mike Sanders testifies for prosecution re meaning of code words in drug trade. Defendant objects that agent is not qualified to opine on meaning intended by defendant in using such language, and that such testimony constitutes improper "profiling" evidence. District court overrules objections and jury convicts. Admissibility affirmed. This is not profiling evidence, and witness did not testify to meaning that defendant attached to any particular language, but only to points of general usage. Defendant also argues on appeal that testimony was inadmissible under Fed. R. Evid. 403, but this point was not raised below, and no plain error appears.

United States v. Hernandez, No. 01-1194 (10th Cir. June 19, 2002) (unpublished). Prosecution offers Joseph Mongeluzzo to testify as handwriting expert in tax fraud case. After Daubert hearing, district court holds that expert may testify on physical characteristics and mechanics of handwriting, and may point to similarities between handwriting on documents and known exemplar from defendant, but may not opine that handwriting on documents is defendant's. Admissibility affirmed. Expert had extensive experience, and district court's Solomonic order did not abuse discretion.

United States v. Cantwell, No. 01-4171 (10th Cir. May 15, 2002) (unpublished). At mail fraud trial, government offers testimony from certified fraud examiner, Alan Funk, on pyramid schemes. Admissibility affirmed. Witness was qualified. He testified to experience with 300 investigations, including many fraud investigations, some specifically involving pyramid schemes. Defendant argues that testimony was irrelevant and/or prejudicial because defendant was not charged with operating pyramid scheme, but testimony was plainly relevant to show scheme to defraud under mail fraud statute.

United States v. Turner, 285 F.3d 909 (10th Cir.), cert. denied, 537 U.S. 895 (2002). District court rejects criminal defendant's Daubert challenge to prosecution's fingerprint evidence without conducting Daubert hearing, believing fingerprint identification to constitute example of evidence whose reliability "is properly taken for granted" under Kumho. Conviction affirmed. More detailed findings by district court would have been desirable, but any error was harmless.

United States v. Busby, No. 00-5014 (10th Cir. July 3, 2001) (unpublished), cert. denied, 534 U.S. 1031 (2001). FBI document expert testifies at criminal trial that certain records obtained in police investigation were consistent with and in format of "an illegal drug organization's record keeping." Admissibility affirmed. District court did not abuse discretion or offend Daubert or Kumho Tire.

Stills v. Dorsey, No. 00-2475 (10th Cir. Mar. 29, 2001) (unpublished). Prisoner brings habeas action, alleging his New Mexico murder conviction should be overturned because polymerase chain reaction (PMR) method of DNA testing, on which prosecutors relied, is invalid. Appeal dismissed (admissibility affirmed). On convict's initial appeal, New Mexico Supreme Court thoroughly analyzed PMR testing and concluded it satisfied Daubert. Convict's objections to PMR evidence go to weight, not admissibility.

United States v. Allerheiligen, No. 99-3144 (10th Cir. Aug. 1, 2000) (unpublished), cert. denied, 531 U.S. 1079 (2001). Law enforcement personnel find large numbers of marijuana plants on man's property, along with marijuana-growing paraphernalia. Man offers testimony from three putative experts (one columnist for High Times magazine, one law enforcement officer, and one lawyer) on differences between marijuana grown for distribution versus marijuana cultivated only for personal use. District court excludes testimony from all three as extending beyond any specialized knowledge they possess. District court also excludes testimony from physician re defendant's medical and psychological conditions, because no medical necessity defense to marijuana possession is recognized. Exclusion affirmed. District court did not abuse discretion in excluding testimony from distribution-versus-personal-use witnesses. Defendant says physician's testimony was relevant not only to medical necessity defense but also to show that quantity of marijuana on premises would be consistent with personal consumption, but district court could nevertheless exclude physician's testimony as likely to confuse jury under Fed. R. Evid. 403.

Storts v. Hardee's Food Systems, Inc., No. 98-3285 (10th Cir. Apr. 6, 2000) (unpublished). After being abducted from parking lot of fast-food establishment along Kansas Turnpike, woman is raped and sodomized at gunpoint. Woman sues Hardee's for supplying inadequate security and offers three experts to testify re security measures Hardee's should or could have taken. District court admits testimony from all three. Jury returns verdict for plaintiff. Admissibility affirmed. Expert "Mallard" had extensive experience in law enforcement and personal knowledge of Kansas Turnpike. Fred DelMarva had extensive background in restaurant management and security, especially re fast food parlors. And Michael Witkowski's testimony was based on theory of Crime Prevention Through Environmental Design ("CPTED"), which enjoys widespread acceptance and was employed by Hardee's as part of its security program. Testimony from experts Mallard and Witkowski re foreseeability of harm did not improperly invade jury's province by addressing ultimate issue, because both explained bases for their testimony in detail.

United States v. Hamaker, No. 03-12544 (11th Cir. July 14, 2006). At bank fraud trial, prosecution offers testimony re bank records from FBI financial analyst Norman "Pete" Odom. District court overrules defendants' objection that Odom was not designated as expert during discovery. Jury convicts. Admissibility affirmed. Witness offered lay testimony only. He testified that although his expertise and computer software made his review of bank records more efficient, his testimony ultimately depended only on basic math within ken of average juror.

United States v. Garcia, 447 F.3d 1327 (11th Cir. 2006). In narcotics trial, DEA agent Keith Cromer testifies for prosecution on modus operandi of drug trafficking organizations. Admissibility affirmed. Witness had extensive experience, and testimony was helpful to trier of fact. No abuse of discretion.

United States v. Dulcio, 441 F.3d 1269 (11th Cir. 2006). Prosecution offers lay opinion testimony from drug agents re modus operandi of narcotics dealers. Jury convicts. Admissibility reversed. Because this testimony was founded on specialized knowledge, it should have been offered as expert testimony, not lay opinion. But error was harmless in light of other evidence of guilt.

United States v. Estelan, No. 05-11411 (11th Cir. Nov. 28, 2005) (unpublished). In narcotics trial, DEA agent Richard Bonner testifies to how cocaine base is typically sold, and opines that amounts recovered from defendant are indicative of possession for distribution rather than personal use. Admissibility affirmed. It is true, as DEA agent admitted, that he has never published peer-reviewed articles on cocaine distribution, and that his testimony was based solely on his training and experience. But agent's experience is extensive, and not every Daubert factor need be satisfied for law enforcement officers offering expert testimony on narcotics trafficking.

United States v. McKreith, No. 03-11199 (11th Cir. July 8, 2005) (unpublished), cert. denied, 126 S. Ct. 1117 (2006). In bank robbery trial, prosecution offers testimony from FBI forensic analyst, who opines that plaid shirt seized from defendant's residence matches shirt being worn by bank robber on bank's surveillance videotapes. District court admits testimony after Daubert hearing, and jury convicts. Admissibility affirmed. Witness explained scientific basis for his analysis and was subject to cross-examination. Alternatively, admission of testimony was harmless error.

United States v. Albritton, No. 04-10679 (11th Cir. June 10, 2005) (unpublished), cert. denied, 126 S. Ct. 470 (2005). In bank robbery prosecution, government offers law enforcement agent as expert to testify to his opinion that latent shoeprint found on teller counter matches shoes seized from defendant's apartment. Defendant objects. Trial court sustains objection and instructs jury that it may compare shoes and latent print for itself. Jury convicts and defendant appeals. Affirmed. Defendant offers no evidence that agent's testimony altered outcome of case in light of limiting instruction, and other evidence sufficiently supports conviction.

United States v. Buonsignore, No. 04-13098 (11th Cir. May 13, 2005) (unpublished), cert. denied, 126 S. Ct. 270 (2005). Agent testifies to value of heroin in narcotics trial. Jury convicts. Admissibility affirmed. Defendant complains that agent did not perform his own analysis but merely restated figures given to him by someone in Washington, D.C. However, district court permissibly admitted agent's testimony under Fed. R. Civ. P. 702. Agent had requisite training and experience to testify as expert, and experts may rely on hearsay under Fed. R. Civ. P. 703. Agent's reliance on that hearsay did violate Confrontation Clause, but that error was harmless.

United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (en banc) (overruling United States v. Frazier, 322 F.3d 1262 (11th Cir. 2003) [infra]), cert. denied, 125 S. Ct. 2516 (2005). In kidnapping trial, trial court admits some testimony from defendant's forensic expert Robert Tressel, but excludes as unreliable his proposed testimony that "[w]ith the amount of sexual activity described in the search warrant affidavit, it would be expected that some transfer of either hairs or seminal fluid would occur in this case." Jury convicts and defendant appeals. Exclusion affirmed. Appellate review of district court gatekeeping decisions is deferential. District court permissibly found that expert had no empirical support for his inherently probabilistic assessment that transfer of hair or seminal fluid would be "expected." Although expert is concededly qualified, his experience does not obviate need for separate reliability inquiry.

United States v. Abreu, 406 F.3d 1304 (11th Cir. 2005). Defendant in drug trial objects to reliability of government's fingerprint evidence. Magistrate judge denies defendant's motion to exclude and district judge affirms. Jury convicts. Defendant appeals. Admissibility affirmed. Magistrate judge properly considered uniform practices used by fingerprint examiners, as well as error rate. Other circuits have affirmed reliability of fingerprint analysis. Lower court did not apply wrong legal standard or make any clear error of judgment. Moreover, even if admitting evidence had been error, it would be harmless in light of other evidence of guilt. No abuse of discretion.

United States v. Bennett, 368 F.3d 1343 (11th Cir. 2004), vacated on other grounds, 543 U.S. 1110 (2005). District court admits testimony from government expert Monica Price, who opines on theoretical yield from defendant's methamphetamine lab. Jury convicts. Admissibility affirmed. Defendant says witness is short on experience, but she does boast substantial education and training.

United States v. Puche, 350 F.3d 1137 (11th Cir. 2003). In money laundering trial, district court admits detective's testimony that defendants structured cash transactions to avoid currency reporting requirements. Jury convicts. Admissibility affirmed. Detective had considerable training in domestic and international money laundering, and could legitimately form opinion based on review of financial records, without first-hand personal knowledge of underlying transactions.

United States v. Frazier, 322 F.3d 1262 (11th Cir. 2003), overruled on reconsideration en banc, 387 F.3d 1244 (11th Cir. 2004), cert. denied, 125 S. Ct. 2516 (2005). Man is charged with kidnapping and sexually assaulting 18-year-old woman. Her version: defendant abducted her at knifepoint, forced her to drive him to dark wooded area, and committed multiple sexual assaults. His version: woman offered him ride, and later manufactured kidnapping and assault charges to explain missing her curfew. Defendant offers forensic expert Robert Tressel to opine, based on admitted absence of defendant's hair and bodily fluids from site, that no forensic evidence corroborated complainant's story. District court refuses to permit that testimonial inference, and defense counsel therefore elects not to call Tressel, but simply to elicit testimony from prosecution's FBI lab techs that no matching hair or bodily fluids were in fact found. Exclusion reversed. Trial court faulted expert's lack of scientific background or methodology, but expert had very extensive experience investigating sexual assault cases, and his modest opinion that forensic evidence did not substantiate assault was sufficiently grounded in that experience. Dissent: Expert offered no reliable basis for conclusion that hair or fluid samples would have been recovered if victim had been assaulted.

United States v. Tinoco, 304 F.3d 1088 (11th Cir. 2002), cert. denied, 538 U.S. 909 (2003). Drug defendants object to testimony of law enforcement officers, admitted as lay opinion: (1) characterizing their boat as "go-fast boat" commonly used for drug smuggling and not normally found 300 miles from shore when used for recreational purposes; and (2) estimating street value of cocaine seized from boat. Defendants contend testimony is actually expert opinion, and therefore is subject to disclosure requirements that prosecution did not honor. District court declines to exclude testimony on these grounds, and jury convicts. Affirmed. Testimony re boat was founded in part on witness's first-hand observations and qualified as lay opinion, even though it also might have been admissible as expert opinion. Those two categories of opinion evidence are not mutually exclusive, at least in cases arising prior to amendments to Fed. R. Evid. 701 in 2000. Testimony re street price of cocaine is closer question, but issue need not be decided, because defendants have not shown how their ability to mount defense was compromised by prosecution's failure to disclose testimony before trial.

United States v. Novaton, 271 F.3d 968 (11th Cir. 2001), cert. denied, 535 U.S. 1120 (2002). Defendants in drug trial object when prosecution offers law enforcement officers to offer lay opinion re meaning of code words used in recorded phone conversations. Admissibility affirmed. Defendants argue that because witnesses drew on prior experience, their testimony was not lay opinion, but expert opinion in disguise. It is true that Eleventh Circuit has upheld similar testimony as expert opinion in past. But mere fact that testimony could be offered by expert does not preclude its admissibility as lay opinion -- at least not in cases tried, like this case, before effective date of amendments to Fed. R. Evid. 701 in 2000.http://www.law.cornell.edu/rules/fre/rules.htm#Rule701

United States v. Campbell, 223 F.3d 1286 (11th Cir. 2000), cert. denied, 534 U.S. 829 (2001). Cocaine is found in drug courier's luggage during airport search. Courier signs statement prepared by customs agent. Statement includes sentence reading: "Agent McKenney explained to the defendant that nobody gives this amount of cocaine to someone they don't trust." This tends to negate courier's eventual defense, proffered at trial, that he was unwittingly transporting cocaine that someone else had planted in his suitcase without his knowledge. Jury hears discussion of hearsay opinion from defendant's post-arrest statement three times during customs agent's testimony, and prosecution refers to it during closing argument as though customs agent had actually offered same opinion at trial. Defendant objects on none of these occasions. Jury convicts. Admissibility affirmed. Because defendant did not object at trial, review is for plain error only. Inclusion of customs agent's opinion in statement prepared for defendant's signature was improper and not to be condoned. However, admission of his hearsay opinion was not plainly erroneous. Agent testified and was subject to cross-examination. His eleven years of experience would have qualified him as expert competent to render opinions of this kind. And other evidence overwhelmingly supported defendant's guilty knowledge. District courts cannot be required to police hearsay evidence in absence of objection. Godbold, J., dissenting: "This is a shabby case. Our government can do better than this."

United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006). Prosecution in narcotics trial offers testimony from law enforcement officer re drug jargon. Jury convicts. Admissibility affirmed. Defendant complains that district court permitted officer's designation as expert based solely on officer's long experience in narcotics investigations. That is true, but it was not error.

United States v. Miller, 395 F.3d 452 (D.C. Cir. 2005), vacated on other grounds, 125 S. Ct. 2554 (2005). Detective Tyrone Thomas testifies at drug trial that defendant's conduct is consistent with intent to distribute. Jury convicts. Admissibility affirmed. Defendant did not object at trial and so review is for plain error. Testimony was properly admitted under Fed. R. Evid. 702, as detective was testifying to matters not within common knowledge of average juror. Defendant also argues that testimony was inadmissible expert evidence on mens rea under Fed. R. Evid. 704. But although prosecutor's question did ask about "intent," detective's answer avoided that word and focused on modus operandi evidence. Moreover, detective did make clear that he had no personal knowledge about defendant or facts of case. That is enough, on plain error review, to avert reversal for abuse of discretion.

United States v. Williams, 212 F.3d 1305 (D.C. Cir.), cert. denied, 531 U.S. 1056 (2000). Man fleeing police throws gun in river. At man's trial for unlawful possession of handgun by felon, prosecution establishes that defendant is drug user. Police officer then testifies for prosecution, on redirect, that in officer's experience, drug users and dealers commonly carry guns for protection. District court overrules defendant's objection and refuses to permit recross examination. Conviction affirmed (because admitting evidence was harmless error). Officer testified that he had participated in only ten or eleven gun arrests, and no evidence of record suggests that those prior arrests involved drugs, so officer was not qualified to testify as expert. Nor did prosecution lay sufficient foundation for officer's testimony to be admissible as lay opinion. Trial courts do enjoy discretion in decisions whether to admit opinion testimony, but their discretion is predicated in part on assumption that cross examination will be permitted if weak testimony is admitted (citing Daubert), and no cross was permitted here. However, error was harmless, because other evidence amply supported finding of guilt, and also because trial court gave suitable jury instructions.

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